Managing Performance: 5 Tips From Lee Stephens, Employment Law Solicitor

So many complex and costly legal errors often spin out of handling, and indeed, mishandling performance issues in the workplace. Lee Stephens, Principal Solicitor and Director at BRIDGE, shares his key steps to consider when approaching underperformance in your business.

1: Make sure the handling of Performance management is objective

Ideally, any organisation will need an independent and more senior person to run the process and another for appeal. This doesn’t mean the manager who manages the employee can’t do this, however, if things are getting difficult, it makes it easier for the employee to put, shall we say, 'legal spanners in the works' if they raise issues with their manager’s management or conduct. Thus,  independent input is useful and tactically prudent.

2: Check the evidence and set the scene

In order to measure performance and then take action, employers first need a clear benchmark to measure against. Start by determining the following:

• What is the job role?
• What duties and responsibilities are there?
• What standards and timings are required for the delivery of work?
• To whom?
• What does the contract and job specification say?
• What do your business policies say, and are they compliant?

A common mistake employers make is to call out poor performance prior to making clear what is required of the employee. To do so can invalidate the employer's position and leave things open to appeal, or worse.

You’ll need a clear and agreed job specification as your platform to call employees to account.

You’ll also need clear and detailed evidence of the underperformance; if it’s subtle poor work then collect the examples, with dates, and times if it’s a one-off issue. Collect the evidence in as much detail as possible.

3:  Check the correct process Are being Followed

For example:

• In cases of gross negligence (a very serious and very obvious mistake that you can prove the employee knew not to make) causing real harm/loss to the business, it may be that the disciplinary process is more suitable.
  
  
• In cases where there are health issues from which arise performance issues, it may be that an entirely separate process is followed to comply with the Equality Act 2010 first, such as medical and occupation health and reasonable adjustment assessments. In those cases, if you don’t do that and blindly follow the performance route regardless, you can create expensive discrimination claims.

So, check the issue and check the process. Depending on how the employee responds, you may need to pause and re-assess and change the process.

4: It is not always as it seems. check and reflect before Acting

The most common causes of poor performance include:

1. Health issues – the employee could be protected under the Equality Act 2010 which often requires a specific process, but not in all cases.
2. Poor capability – the employee just isn’t up to the job.
3. Poor management – bullying and/or unclear management and task requirements set.
4. Overload/stress at work – this can create wider claims around stress, personal injury, health and breach of contract, all of which have specific legal approaches.

In each case, to avoid claims arising out of mishandling such issues, employers have the task of discovering exactly what is causing the issues; what appears to be a performance issue can often hide more complex legal pitfalls.

Taking an underlying health issue as an example, in cases where it could be a long-term condition, it could be assessed as a disability. Without a proper assessment, you could be unwittingly committing costly acts of discrimination.

So, meet with the employee and sound them out generally as to health and progress and their thoughts before progressing.

5: Know THe CORRECT process, the law and set the protocols

Don’t breach your own business processes! This does happen. Check the business's procedure and check it is legally compliant. If issuing a warning with improvement requirements (among other things), make it clear in writing. Include:

1. Exactly what is not being done. State the supporting evidence.
2. What you have agreed to do, how, and by when
3. Agree on the time frame with the employee and meet to review again.
4. Make clear the nature and level of the warning and the next steps if improvement isn’t reached.
5. Offer training and support. Be clear about when and how its to be done.
6. Outline the process and what will happen next.
7. A right to appeal any warning or decision too.
8. Define the issues very clearly, with examples, and the improvements required.

Many warnings in performance management don’t stand legally, thus progression to the next stage is not always technically legally valid when an employer gets it wrong. In some cases, it’s so wrong it can create wider claims and liabilities.

Summary

Good performance management comes from clarity. 

• Make sure the job specification sets out duties, responsibilities, and standards.
• Build the specification into a regular and well-documented appraisal based on the job duties already agreed upon.
• If the duties are varied, make sure that is recorded too.
• If failings occur, gather evidence and assess the employee for wider issues before progressing.
• Make sure to follow your business's procedure and make sure it’s legally compliant.
• Be careful how you word your warnings and improvement notices - if they are not technically correct you can’t always rely on them to progress.
• Put managers through Employment Law training so they stay up-to-date. Training by BRIDGE really does help managers manage more effectively and gives them the confidence to proactively handle employee performance issues. 
  
  

BOOK Performance Management and Sickness Absence TRAINING FOR YOUR MANAGERS AND HR PERSONNEL 

Our Specialist, Legal 500 Solicitors are delivering a training session on Equality and Diversity Law on the 23rd of February 2023 in York. The practical training workshop for Managers & HR Managers including templates and documents. The training covers: