Employees are a valuable asset to any business, so performance issues should be managed effectively as they arise, following a proper procedure to avoid successful employment tribunal claims.
While claims can arise at any stage of the performance process the most likely claim is for unfair dismissal. Generally, employees have to have at least two years’ service (or one year’s service, if their employment started before 6 April 2012) to claim unfair dismissal. A dismissal for performance issues or capability can be fair, but an employer also has to follow a fair procedure when making that dismissal. This involves a formal discussion with the employee about the issues, including any reasons why the employee is not performing well, and a series of warnings before any dismissal. At each stage the employee must be set targets, given any necessary support and training to achieve those targets, and their progress must be monitored and assessed. Only if the employee still fails to achieve their targets after the series of warnings have been given can the employer dismiss the employee.
But performance management should not be left until dismissal is on the horizon; it should start with the recruitment process.
Before recruiting to a role, consider what the business is trying to achieve and the role the new employee is going to play in that process, as well as the skills and standards required of that individual. Set these out for the new employee, ideally in writing, so they know what is expected of them and review those standards as the role develops.
Review performance regularly:
Manage an employee’s performance throughout the employee’s employment with regular appraisals and feedback, assessed against the standards that the employee knows about already. This reduces the risk of a performance issue arising in the first place, but if it does, it makes it easier to deal with it informally by referring the employee to the standards and explaining how they are not meeting them.
Deal with issues as they arise:
Performance issues should be dealt with quickly. While the conversation may be uncomfortable, the quicker it is dealt with, the more likely that the issue can be handled informally. However if, ultimately, formal action or even dismissal proves necessary, it is easier to defend a claim at an employment tribunal successfully where the issue has been dealt with, and not ignored in the hope that things will improve.
It is particularly difficult to defend a tribunal claim when an employee has a good appraisal or has been awarded a performance bonus for a period during which an employer claims the employee was under performing. Even if performance issues are not dealt with as they arise, raise them in any appraisal or annual assessment; it should not be a tick box exercise, overlooking the underlying problem.
Do not single out, or be seen to single out, any employee as this can lead to a discrimination claim. Treat all employees in the same way unless you can justify the difference in treatment. Even if an employee doesn’t have sufficient service to bring an unfair dismissal claim, consider following some form of procedure. This may avoid a discrimination claim that an employee was treated differently on the basis of a protected characteristic such as sex, race, religion, age, disability or sexual orientation.
Make notes of conversations, warnings and any plan put in place to manage an employee’s performance. Written evidence is invaluable in defending any potential claim from an employee.
Louise Paull - LawBite Employment LawBrief
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