Dealing with poor performers is often the area which managers find most challenging. We set out below seven key steps managers should take to ensure they formally manage any performance issues which arise amongst their employees.
1. Carry out a reasonable investigation
The Acas Code of Practice states that before embarking on any formal course of action an employer should carry out an investigation, which should include speaking to the employee and giving them the opportunity to comment on any evidence which highlights the performance concerns. Accurate performance appraisals or previous informal discussions will assist with this process.
It is therefore advisable to keep a written log of previous informal discussions with the employee, to record what attempts have first been made to address the concerns informally.
The investigation may reveal underlying reasons for the performance issues, which the employer will need to consider before deciding on next steps. For example, any issues which are potentially caused by the employer's failure to provide training and/or support should be addressed. Similarly, any indications of ill-health or physical impairment should be investigated further in case the employer needs to consider making any adjustments in cases of disability.
2. Hold a formal meeting
If there is no underlying reason or obvious explanation for the performance issues a formal meeting should be arranged. The employee should be notified, in writing, of the shortcomings in their performance and be given a summary of relevant information and any relevant documents which support the concerns raised. The employee should also be warned of the possible consequences if performance is found to have fallen short of the required standard.
The employee does not have the right to be accompanied at an investigatory meeting, but does have the right to be accompanied at a formal meeting that could result in disciplinary action being taken including any capability warning.
At the meeting, both employer and employee should explain their case and explore the cause of the underperformance as well as determining what, if any, remedial action can be taken. If the underperformance is established then a formal warning can be issued. The non-statutory Acas guide refers to first written warnings in poor performance cases as "improvement notes" and the Acas Code recommends that at least two warnings are given before an individual is dismissed for poor performance. Clear reasonable objectives should also be set for the employee to achieve within a reasonable period of time and the employee should be warned about what will happen if those objectives are not met. The employee should be notified in writing of the outcome of the meeting and their right of appeal.
3. Give the employee the chance to improve
How much time needs to be given to the employee to achieve the set objectives will depend on the circumstances and the role in question. If a capability procedure provides for a certain timescale for improvement, this should be adhered to. In the absence of such timescales, the quality and length of the employee's past service may be a relevant, as will the extent of the underperformance.
4. Offer training and support
As well as setting the objectives, the employer should also offer appropriate support or training to help the employee to meet the required standard. This could include regular monitoring of the employee's performance, additional supervision or providing extra resources.
5. Review progress
It is important that the employer diarises the period given to the employee for improvement and any agreed dates for review or monitoring of the employee's progress to ensure that these are met.
6. Establish a reasonable belief
In the event that the employee's performance does not improve despite repeated warning and support, an employer may then consider dismissing the employee on grounds of capability. An employer will have to show that it had a reasonable belief in the employee's incompetence when it took the decision to dismiss so there must be clear evidence of the poor performance and a lack of sufficient improvement despite the support offered to the employee.
7. Consider alternatives
Whilst there is no absolute obligation on an employer to consider alternative employment or demotion before taking the decision to dismiss, it may be unreasonable not to do so depending on the size and administrative resources of the employer.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.