1. Performance Management – Part 1 “How do I Manage Performance”? Matthew C Winter LLM FCIPD Head of Employment Practices and Business Support 49

2. Performance Management Definition PERFORMANCE MANGEMENT (PM) includes activities which ensure that goals are consistently being met in an effective manner. Performance Management can focus on the performance of an Organisation, a department, employee, or even the process to build a product of service, as well as many other areas. PM is also known as a process by which Organisations align their resources, systems and employees to strategic objectives and priorities. 50

3. Why does Performance need to be managed? Poor Performance can lead to: Reduced productivity Low staff morale High staff turnover Unproductive and costly use of management time Increased staff absence Damage to reputation Claims for unfair dismissal and discrimination 51

4. What is poor performance? Bad attitude Laziness Being inflexible Difficult and obstructive Not reaching targets Failing to deliver Carelessness Lack of skills to carry out the job 52

5. Aim of Performance Management To help the employee for the benefit of the individual and the Board To identify problem areas To agree steps with the employee to redress the problem To lay down the procedure to be followed when an employee fails to meet the standard required by the Trust 53

6. Disciplinary v Capability Capability procedure -Employee incompetent through no fault of his own; Lack of skills Insufficient support and training Too much work Unable to manage time adequately Insufficient qualifications to carry out the role 54

7. Disciplinary v Capability (cont) Disciplinary procedure -Conduct issues where employee capable but; Conscious/deliberate lack of application Refusal to obey lawful orders Careless Difficult Inflexible Idle Bad attitude 55

8. Heard this one before? 30 years: Most common sayings ‘Too late to change him now’ ‘Been here too long – no point in trying to change him now ‘Retiring in four years – just live with it ‘He’s always been ‘crxx’ – waste of space but will never change ‘Do you want a laugh that bloke from HR, told me you can always dismiss somebody on Capability grounds’ 56

9. Reasons you can be dismissed Misconduct Capability or qualifications Redundancy Continued employment would be against the law Retirement Some other substantial reason (Susp) 57

10. Not advocating dismissal whatsoever in dealing with poor performance but -Even if you have a fair reason for dismissing someone, you must follow the right procedure or the dismissal will still be unfair 58

11. Fairness Reasonable responses test applies at every stage; -Employer’s belief in reason -The grounds upon which belief is formed -Pre-dismissal investigations -Process -Consideration of alternatives to dismissal 59

12. Band of reasonable responses “The function of the Tribunal is to decide whether, in the particular circumstances of each Case, the decision to dismiss fell within the band of reasonable responses which a Reasonable employer might have adopted. If the dismissal falls within the band the Dismissal is fair; if the dismissal falls outside the band, it is unfair”. 60

13. Remedies for Unfair Dismissal Compensation capped: Ciro £70,000 Re-instatement and (Capped compensation) Re-engagement and (Capped compensation) Employer’s failure to comply with ACAS Code - amount increased by no more than 25% Employees failure to comply with ACAS Code – amount reduced by no more than 25% 61

14. The Law on Dismissal for Poor Performance -A capability dismissal is potentially fair. -Onus will be on the employer to justify the dismissal -‘Capability’ relates to the ability of an employee to carry out his job -‘Capability’ is assessed by reference to an employees ‘Skill aptitude, health or any other physical or mental quality’ 62

15. There are two questions that need to be addressed for a capability dismissal to be in order: 1.Does the Employer honestly believe the employee is incompetent or unsuitable for the 2.job are his grounds for the belief reasonable? Employer will have to produce evidence of poor performance and show that this was the Real reason for dismissing the employee 63

16. The manner of any dismissal The manner in which any dismissal is carried out must be fair. A good, fair and robust Process will include the following: - It will ensure continuous appraisal - It will refer to evidence on key performance indicators - Be supported by a CLEAR and COMMUNICATED CAPABILITY PROCEDURE 64

17. Key Issues -Deal with performance issues promptly -Take advice (WOD/Line Manager/Trade Union Representative) -Follow best procedure -Use the appropriate procedure -Examine all the facts - Don’t make assumptions (ass out of u/me)! 65