Poor Performance – FAQs

This is an issue that many employers face at some point in their careers and a bad attitude can have adverse effects on team morale. It is important to be able to determine the root cause of the problem. For example, an inability to improve attitude and performance could be a capability issue, but a deliberate refusal is more likely to be misconduct.

Practically, the type of procedure followed is only an issue if the employee brings a claim for unfair dismissal after being dismissed. If you can evidence that you thought about which procedure to follow and followed the procedure in line with best practice, then you ought to be in a strong position.

It’s important to bear in mind that odd behaviours can arise due to medical conditions so be wary of this when assessing your approach.

This can be very irritating for an employer. You can be lulled into a false sense of security of finally resolving the problem, only for it to rear its head back up. A practical approach could be to decide if its appropriate to extend the time frame for improvement or extend any time periods for warnings given.

If this is the approach to take, you need to set out why you think the extension is needed. This will ensure that the employee understands why this treatment is happening in the first place while also offering protection from discrimination allegations.

This is one of the most difficult areas to decide on, and many employers often implement a period of time which is too short. For example, in a past employment tribunal case (Siburn v Modern Telephones Limited), it was ruled that a salesman with 20 years’ service was entitled to 3 years to improve his performance.

Employers need to consider each individual’s circumstances on a case-by-case basis, while at the same time following any capability procedure or policy.

Factors considered in determining the reasonableness of the performance period could be:

• The nature of the job;
• The company’s procedures and practices;
• The employee’s past performance;
• The size and administrative resources of the employer;
• The personal circumstances of the employee (such as their length of service and prior performance); and
• If the employee has any agreements with the trade union.

A vital point to identify is the performance gap. This is the gap between what an employee is doing and what they should be doing. This can help point the employee in the right direction in terms of their performance but also builds the case for a fair dismissal.

The manager will need to convey the poor performance specifically, and it’s important to remember that vague expressions of unhappiness are not enough. The manager needs to be able to display the baseline performance required of their team. This could be measured on either subjective or objective criteria.

Employees need to know the baseline and their knowledge of this needs to be evidenced. Once the baseline has been established, the manager should be able to provide proper evidence of where standards have not been reached. This could include examples of work, emails, file reviews, appraisals or any other informal performance processes that have happened.

It’s worth pushing your managers to carry out this exercise regularly to make sure all employees know what is expected of them. You should always encourage your line managers to carry out appraisals honestly and meaningfully. It can be easy to view them as a box-ticking exercise, but thorough and detailed appraisals which evidence performance concerns can help to justify a fair dismissal.

A performance management process can take a very long time and cause disruption. And, if it ends in dismissal, an employee with more than two years’ service will be able to bring an unfair dismissal claim even if the right process was followed. Because of this, many businesses will consider a settlement agreement which allow both parties to part ways on good terms and without delay.

These types of discussions need to be had with care. Employers usually start the process by implementing a capability procedure and then may indicate to the employee that they will be open to an exit strategy. Employers need to make it clear that they will go through with the capability procedure otherwise the employee will not be incentivised to consider the offer.

Settlement agreements can be very useful, but they should not be used as a default position. Otherwise, the employer could gain a reputation of rewarding poor performance with generous pay offs.