Performance Management

What is performance management?

Employers are advised to have a performance management procedure in place to monitor the performance and personal development of their employees on a regular basis. It should be rolled out across the entire organisation and not exclude any individuals regardless of their seniority. The meetings are an opportunity for both the employer and employee to discuss any issues, celebrate success, look ahead and set goals.  

How does an Employer address the issue of performance?

Where an employee is not meeting targets and is deemed to be underperforming these reviews can be a way of addressing these problems. A performance improvement plan (PIP) could be implemented to monitor ongoing performance and it is important that these are SMART; specific, measurable, attainable, realistic and timely.  Once implemented, the employee should be notified of the employer’s expectations, and the consequences should the PIP fail to make any difference.

What does the Employer have to consider in relation to performance matters?

Any issues relating to the development and performance of an individual should be addressed head on in the first instance, if there is no change and the problems persist, it may become appropriate to begin disciplinary proceedings. In 2009, the ACAS (Advisory, Conciliation & Arbitration Services) introduced a code of practice for employers to follow when dealing with a disciplinary matter.

The ACAS Disciplinary Code of Practice Procedure:

The employer should write to the employee notifying them of any allegations against them, the basis of these allegations with an invitation for the employee to attend a meeting to discuss the matter further.

Hold a meeting to discuss the allegations.  Employees have the right to be accompanied at the meeting by another individual.  After the meeting, the employer must notify the employee of the decision and inform the employee about their right to appeal the decision.

If the employee appeals, hold an appeal meeting.  Again, the employee has the right to be accompanied by another individual at this meeting. The employer is required to inform the employee of the final decision.

The ACAS Disciplinary Code of Practice advice for employers

• Establish all of the facts before taking any action
• Only use formal procedures for serious disciplinary matters, less serious matters can be addressed through a PIP with staged warnings, for example.
• Outline what the employee needs to do to either improve their performance or what they need to change, how this will be monitored and the consequences of failing to improve or change.
• Inform the employee of their right to appeal and arrange for any appeal to be heard by a senior manager not involved in any previous meetings.
• Agree a suitable date for meetings with the employee and the person chosen to accompany them, if applicable.
• Take timely action, i.e. deal with disciplinary action or grievances without delay
• Keeps written records of meetings and actions taken, a paper trail is vital should the issue escalate.

ACAS also provides guidance on how to deal with grievances however these are from an employee’s perspective rather than the employers.

What happens if an Employer fails to follow a fair procedure?

If an employer decides that it is necessary to performance manage an employee but does not follow a correct procedure, then the employee may be able to bring a claim of unfair dismissal or discrimination if either the procedure was not fairly carried out or the decision to dismiss the employee was unfair.

The issues can become complex and it is important to follow a set structure with the aim of improving the employees performance and putting in place opportunities for the employee’s assistance. However, inevitably sometimes performance cannot be improved and this may result in the dismissal of the employee. With good advice you can reduce the risk of a claim and reduce the complications that can arise to the business by a claim being made.

Our employment team is able to provide you with the necessary guidance and advice to ensure you follow the correct procedures to protect both yourself as the employer and your employees. It can be a minefield, but we can help you navigate your way through it. We offer no-obligation initial appointments and can meet you at any of our office locations in Market Harborough, Leicester or Wigston. You can contact the team directly by calling 0116 212 1000 or complete our online contact form.