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 House Exchange Street BLACKBURN BB1 7JN
Ninth Floor
80 Mosley Street
MANCHESTER
M2 3FX
Tel: