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Managing poor performance – making sure you get it right legally

Managing poor performance – making sure you get it right legally
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Managing poor performance – making sure you get it right legally
Kate Lawson - Element Law by Kate Lawson - Element Law
Director - Element Law

Managing your employees’ performance effectively requires investment of time and effort, but this process is often preferable to dealing with unresolved poor performance. However, you do need to make sure you get it right, or your company could end up in deep water.  To help you, CapitalSpace legal expert Kate Lawson of Element Law has pulled together a beginner’s guide to getting the best from your employees – legally. 

Appraising your systems

Performance management should be built into your business culture: keeping track of performance with regular, documented appraisals and performance reviews will encourage your staff to achieve their best, enable you to manage poor performance in a timely way and stop those whom you need to pull up their socks from feeling that it’s personal.

Where performance is falling below standard, start more regular supervisions; the aim should initially be to encourage your staff to meet the performance you require of them.  It’s important to try and understand if there are any problems that may be causing the issues.  You may also need to think about additional support, such as internal or external training and mentoring. 

It is strongly advised you do not ignore the problem and then suddenly try and dismiss in a short period.  The performance concern should be managed from as early as possible, and the issues, interventions and support fully documented.

Formal proceedings

It is key to follow a capability process if the performance issues require formal action. This is akin to a disciplinary process but aimed at performance, and other capability, issues.  At each stage of the review process, it is important to set clear and reasonable objectives as far as possible in discussion with the employee.  Attach a realistic timeframe for review to these objectives, and remember to document the process. 

Before a performance or capability dismissal can take place, once the employee has 1 years and 51 weeks’ service, the process will require a first written warning and then a final written warning, with a reasonable review period and a full hearing to take place before each warning can be given, and then again before any dismissal can proceed.  These warnings have an expiry date and expired warnings should not be relied on to move to the next level of warning, or dismissal.

 It is likely to take at least six months to move through a formal capability process, and potentially nine to twelve months depending on the nature of the role and the objectives. 

Appeals and special considerations

Your employees have the right of appeal against all warnings and dismissal, so therefore can appeal at each stage of the capability process.

If an employee is disabled, reasonable adjustments must be made both to the working conditions and to the performance review and capability process.  A disability is not always apparent, but you may be considered to have implied knowledge of this, for example if the employee has taken sick leave or raised health concerns.

Probation periods

The probation period is the best time to manage performance and wheedle out employees who are not showing signs of capability for the role.  Employers have now up to 1 year and 51 weeks to make a decision on performance, and may be able to dismiss up to this time, without warnings, for pure performance issues without risk. 

Be cautious however of discrimination issues, and particularly disability discrimination based on the positive duty on employers to make reasonable adjustments for their disabled employees.

Managing your employees’ performance can help your company achieve its objectives – and help your staff reach their full potential.

Read more about how the law affects your business from the CapitalSpace legal experts:

Meet the expert

Kate Lawson is a specialist employment law solicitor and HR adviser and trainer, offering solution-driven employment law and HR advice to employers and employees. 

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