Staff Matters

Identifying concerns

Key to preventing performance problems is to make it clear to staff what standards are required. Just as important is that appraisals are accurate. If they give a false impression that an employee’s performance is satisfactory, this may be used by the employee to argue that action against him or her is unfair. Steps should be taken to address poor performance at a very early stage. An early counselling interview should be held with the employee to identify:

• the cause of the performance concern;

• the standards the employee is expected to achieve, with reference to clear examples;

• whether the employer needs to take action to support the employee (for example by giving further training or supervision); and

• the timescale for any improvement with a followup review.

A tribunal will expect the employer to assist the employee and encourage him or her to meet the required standards. The employer will also need to show that it has followed a fair procedure, as outlined below.

Formal procedure

If the informal counselling does not result in improved performance, formal action may be necessary. The warnings that may have to be given in turn before a dismissal will be considered fair by a tribunal are: a verbal warning; a written warning; and a final written warning. The following procedure should be followed before any warnings may be given:

• inform the employee about the meeting in advance and tell him or her what areas of performance are causing concerns or how he or she has failed to improve;

• if a warning may be given, the employee has a right to be accompanied by a fellow employee or trade union representative;

• explain the concerns to the employee and give him or her an opportunity to explain the poor performance;

• decide whether it is appropriate to give a warning in light of the employee’s explanation. If investigation into the explanation is required, adjourn the meeting; and

• explain that the employee has a right of appeal (if he or she does appeal, it should be heard by someone independent of the original decision to issue a warning).

If a warning is issued, it should cover the following:

• how the employee’s performance is falling short;

• what standards the employee must reach for performance to be acceptable;

• by when the improvement must be made (any timescale must be reasonable having regard to the nature and length of employment, past performance, seniority and extent of improvement required); and

• what will happen if there is no or insufficient improvement (generally that the employer will proceed to the next level of warning and that ultimately the employee could be dismissed).

The warning should be placed on the employee’s personnel file. A note should be kept of each meeting and a copy given to the employee. The employee’s performance should be monitored carefully throughout the review period.

Dismissing

Before deciding to dismiss, there should be another meeting at which the employee has an opportunity to explain his or her poor performance. Before a decision is made consider the length and nature of employment; past performance; seniority; extent to which performance targets may be met; and whether any alternative employment is available that would be more suited to the aptitude and capability of the employee.

It is important that accurate notes are made at each stage of the performance management process. These will be vital in defending any claims of unfair dismissal or discrimination related to performance management steps taken by the employer.

Wherever possible, the notes should be agreed with the employee at the time of the discussion or decision.

Free advice is available from the arbitration service ACAS (www.acas.org.uk).