1. Thursday 9 December 2010

3. Oliver McCann Employment Partner Taylors Solicitors

4. MANAGING POOR PERFORMANCE – THE LEGAL ANGLE!

5.  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 1. ACAS WORKPLACE MODEL

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

7.  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 3. CAPABILITY

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

9.  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? 5. INVESTIGATE

10.  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 6. CAUSE OF CAPABILITY ISSUES The above are not the employee’s fault – need to clearly establish at outset what has caused the capability issue

11.  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 7. INFORMAL APPROACH

12.  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 8. FORMAL APPROACH

13.  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 9. PRINCIPLES OF ACAS CODE

14.  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 10. THE PROCESS

15.  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 11. THE DECISION

16.  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 12. AVOIDING AN UNFAIR DISMISSAL

17.  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 13. CASE LAW

18.  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 14. HR TIPS

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: 0844 8000 263 www.taylors.com