You know it’s not working, you know they have done better, you know you need to confront the issue, but you don’t know how……. here’s a summary of the key areas we see employers trip up on, to help you avoid making costly mistakes.
- Check the system first and make a plan
In simple terms, if an employee undertakes a defined role, that role should be set out in both contract (as required under section 1 of the Employment Rights Act 1996 (ERA) and in job specifications and/or policies too. However, roles and standards are either not set out well enough or haven’t been updated. In both cases, before you start any performance process you must ensure you do the following: -
- Establish and set out the role and requirements, as referenced in the contracts and job specifications – gather that together and check it reflects reality.
- Where that does not match up, mark out clearly the actual role and the differences and how that has occurred and when / how that was agreed on.
- Provisionally set out the areas you consider that the employee may be failing to perform on, as against the actual role.
Many employers fail to do the above and, in doing so, instigate processes that don’t reflect the employee’s actual and/or contractual obligations and thus, create misunderstandings and potential legal breaches from the outset. For example, holding an employee to account against incorrect contractual obligations will undermine your legal position from the off.
- Investigate the issues carefully before you act
Once you are clear on the role and obligations, appoint a manager to look objectively at the areas of failure and try to establish the causes.
Areas employers tend to trip up on here include the following:-
- Appointing a manager with an ‘axe to grind’ – make sure the manager who looks into this is not already at loggerheads with the employee in question - that is not uncommon and usually invites counter complaints of unfairness and even bullying. Choose objectivity by appointing an independent manager (it saves time in the long run) or you can instruct our HR team to investigate for you if you do not have independent resource in your team.
- Failing to look properly into issues and moving to use the wrong procedures (see below), for example, moving to discipline where it is not actually a disciplinary issue is very common. When you choose the wrong process, your outcome is likely to be unlawful.
- Do all of this confidentially to ensure you don’t undermine the employee before their peers, without a chance to respond. Again, to do so would be to pre-judge the issue and create a much bigger legal issue of breach of your implied legal duty to act reasonably (if you breach that, you can create constructive unfair dismissal claims allowing the employee to resign and claim unfair dismissal).
- Use the right tools for the right job
Before you start any process, check the following: -
Is it a performance management issue, sickness issue or a disciplinary issue?
Carry out some informal analysis with the employee prior to choosing your process.
The process you use for each issue is dictated by both a) the type of problematic behaviour i.e. lateness and b) the personal circumstances of the employee i.e. an illness causing it.
Each needs assessing carefully to ensure you are on the right track.
For example, persistent intermittent absence and lateness can be caused by a number of underlying issues:
- a performance management issue: this would be where lateness lingers with no clear medical cause or where the poor standards of work have no such clear cause; or
- a disciplinary issue: this could be where you can prove the employee has lied or misled; or
- a sickness and disability issue: this is where it can be caused by a more serious underlying sickness issue amounting to a legal disability under the Equality Act 2010 (“EA”); where an employee has a serious, long terms illness that has a substantial adverse impact on their ability to carry out normal day to day activities. In that case, were you to performance manage them or discipline them without any medical analysis and assessment of adjustments to help them, then you would likely create very costly disability discrimination claims under the EA and breaches of contract under ERA.
- As we will see, having an informal meeting with the employee first, to ask open questions with an open mind as to the causes of the issue should be part of your initial assessment, prior to then choosing which process is the correct one in each case.
- It is often the case the employers get the process wrong which leads to more errors, complaints, and issues. Remember, in cases where there is an illness causing the performance issue which amounts to a disability under the EA then all the employee must show is that they:
- have been treated less favourably because of their disability; or
- something connected to their disability; and
- they then may have a claim for disability discrimination.
- Avoid any inadvertent detrimental treatment
Underperforming employees really do often test the patience of performance managers which can lead to often unintentional bias and prejudicial behaviour, for example, not being invited to certain meetings, excluding and ignoring them.
If that occurs, it can add to or even amount to further claims, for example claims for constructive unfair dismissal, where the employee argues they are no longer wanted or claims for victimisation, for example where the employee raises objections to the treatment, and it continues.
These types of issues can all be avoided by simply stepping back, applying objective analysis and assessing what is really going on before you act.
- Check your internal obligations first
We see so many cases where internal/external policies, ACAS codes (where applicable), union agreements and/or industry specific professional obligations are not adhered to, creating more claims.
For example, where the right to have a Trade Union representative is overlooked in accordance with a collective agreement, the employee complains about that oversight and creates either a breach of contract or even a whistleblowing complaint under section 47 ERA - that is, in simple terms, where the employee argues the employer has breached a legal obligation, they raise it and have been treated detrimentally as a consequence.
It pays to be ready and check the contract, the handbook and any wider industry obligations before you chose how to act.
Summary and key points to take home
- Don’t jump the gun, check the contracts and role specifications and identify the behaviour confidentially and carefully before you act.
- Investigate the issues objectively to ascertain the causes of the problem.
- Choose the correct process based on the analysis at 1 and 2, above.
- Avoid any detrimental treatment – be fair and objective, don’t create more claims and separate conflicting parties.
- Check the process and legal obligations before you act. Remember, it could be:
a. industry specific;
b. union agreements;
c. workforce policies, contracts and agreements too.
We’re here to help, contact the team confidentially if you are struggling with this type of issue, you can ask for a confidential call-back any time:
enquiries@bridgeehr.co.uk