Thursday 9 December 2010

1. Thursday 9 December 2010

3. Oliver McCann Employment Partner Taylors Solicitors

4. MANAGING POOR PERFORMANCE – THE LEGAL ANGLE!

5. 1. ACAS WORKPLACE MODEL • SMART objectives • Agree objectives with employees • Review performance regularly • Agree skills/behaviours needed for jobs • Agree Personal Development Plans • Appraisal systems held on clear evidence • Train Line Managers on performance management • Review performance management system

6. 2. POOR PERFORMANCE – REASONS FOR DISMISSAL? • Eye on the possible end result • Five permitted reasons for dismissal (s98(2) ERA 1996) • Poor performance – capability or conduct

7. 3. CAPABILITY • Capability (can’t) • Defined s98(3) ERA – “skill, aptitude, health or other physical or mental quality” • Unable to carry out job to the Company’s required standards • Note – manager’s personal opinion not relevant • Can include being slow, lack of quality, inflexible or unadaptable • Capability procedure

8. 4. CONDUCT • Conduct (won’t) • Includes carelessness, idleness, negligence and intransigence • Disciplinary procedure

9. 5. INVESTIGATE • Hold initial meeting to discuss poor performance issues • Purpose is to identify cause • Cause determines whether follow disciplinary or capability route (unsure, give benefit of doubt to employee) • If capability, identify whether medical or skill/aptitude issue • Investigation can:- • help identify early solution to problem, ie. medical issue such as eyesight or dyslexia, etc; and • focus on reason for incapability – eg. lack of skill, aptitude or knowledge?

10. 6. CAUSE OF CAPABILITY ISSUES • Inadequate training • Poor systems of work • No supervision or support • Unclear instructions/communications • Incorrect or lack of correct tools • Work overload • Bullying or harassment from Line Manager • Lack of understanding of job/duties, priorities or goals The above are not the employee’s fault – need to clearly establish at outset what has caused the capability issue

11. 7. INFORMAL APPROACH • Clear job description upon commencement, updated as necessary • Clear description of targets, objectives and Company’s standards relevant to role – keep under review • Regular performance appraisals – how often? • All necessary training – practical and theory, updated when necessary • Informal counselling in between appraisals where performance below standard – identify issues and cause – search for solutions but set clear objectives and targets

12. 8. FORMAL APPROACH • ACAS Code of Practice on discipline and grievance procedures • “Disciplinary procedures include misconduct and poor performance” • Fails to differentiate on the reasons for poor performance • Does refer to possible separate capability procedure but states should follow basic principles of fairness set out in Code • Failure to follow Code (or apply its principles) – can be taken into account on question of fairness and up to 25% uplift on awards

13. 9. PRINCIPLES OF ACAS CODE • Rules and procedures set down in writing • Transparency and fairness • Issues dealt with promptly and consistently • Investigation to establish facts • Employee informed of basis of problem (in writing, detail) • Opportunity to put forward their case • Right of accompaniment where formal warning or other action taken • Decision in writing • Appeal process

14. 10. THE PROCESS • Identify capability issue, eg. production output lower than acceptable levels • Obtain documentary evidence to support your concerns • Compile witness evidence where necessary • Checklist – training, targets/objectives, health issues • Hold investigatory meeting and determine next steps based on explanation • Informal counselling, written/final decision, dismissal with notice or demotion/offer of alternative position within employee’s capability

15. 11. THE DECISION • In writing • Clearly set out issues of poor performance – if more than one, identify each and what the specific failing is • Set out employee’s response to allegations • Outline findings and decision, eg. written warning, how long for, etc • Set SMART target in attached PIP for each area of poor performance – specific, measurable, agreed, realistic and timeous • PIP to be signed and identify any steps Company to take to assist employee, ie. training, increased supervision, period of shadowing, weekly review meetings

16. 12. AVOIDING AN UNFAIR DISMISSAL • Identify what was required of employee • Demonstrate employee was aware of those requirements • Prove employee had notice he was not meeting requirements • Show all reasonable support given to employee to meet requirements • Prove employee fell short of requirements despite opportunity to improve

17. 13. CASE LAW • Davidson v. Kent Mears Ltd 1975 • Taylor v. Alidair Ltd 1978 • Fletcher v. St Leonard’s School 1987 • Gozdzik and Scopigno v. Chlidema Carpet Co Ltd 1978 • Laycock v. Jones Buckie Shipyard 1981 • Burns v. Turboflex Ltd 1996

18. 14. HR TIPS • Build flexibility into your capability procedures re: length of warnings, ability to extend where not fully satisfied • Expressly set out in capability policy/harassment policy that Managers have a duty to manage, which includes monitoring, encouraging and challenging – does not constitute harassment • A performance appraisal is not the forum for formal action but content of appraisal must be accurate and based on objective evidence wherever possible • Train Line Managers on appraisal systems and capability procedures

19. Taylors Solicitors Employment Team Oliver McCann – Elaine Hurn – James Bellamy Rawlings HouseExchange StreetBLACKBURNBB1 7JN Ninth Floor 80 Mosley Street MANCHESTER M2 3FX Tel: 0844 8000 263 www.taylors.com