How to manage an employee with poor performance

It is very important to deal with poor employee performance in a different way to misconduct. The following provides a useful checklist of how to deal with performance issues:

Investigate the poor performance

Carry out a reasonable investigation, which may involve a discussion with the employee during investigatory meetings or collating other evidence.

  1. Any investigatory meeting should not result in disciplinary action without a disciplinary hearing.

Inform the employee of the performance issues in writing

Notify the employee in writing of the alleged poor performance (i.e. standard they have not met) and its possible consequences (including, where appropriate, the risk of dismissal). Provide the employee with any written evidence.

The letter should set out the time and place of the poor performance hearing (which should be held without unreasonable delay while ensuring the employee has reasonable time to prepare their case).

It should also set out the employee’s right to bring a companion (either a fellow worker or a trade union representative) to the hearing.

Hold a poor performance (capability) hearing

A decision to dismiss or take other disciplinary action should not be taken without a disciplinary meeting.

Employees and their companions should make every effort to attend the meeting. If the employee is persistently unable or unwilling to attend without good cause, the employer should make a decision on the available evidence. Either side should give advance notice of any witnesses they intend to call.

At the poor performance (capability) hearing

  • Set out the required standards that the employee may have failed to meet;
  • Go through any relevant evidence gathered;
  • Allow the employee to ask questions, present evidence, call witnesses, respond to evidence and make representations;
  • Establish the likely causes of poor employee performance, including any reasons why any measures taken so far have not led to the required improvement;
  • Identify whether there are further measures that may improve performance (i.e. additional training or supervision);
  • Discuss targets for improvement and a time-scale for review, if appropriate; and
  • If dismissal is a possibility, establish whether there is any likelihood of a significant improvement being made within a reasonable time and whether there is any practical alternative to dismissal, such as redeployment.

Inform the employee of the decision in writing

Following the poor performance hearing, the employer’s decision should be sent to the employee in writing without unreasonable delay.

If poor performance is established, a dismissal would usually only be appropriate if there I a written warning and a final written warning.

Written warnings should set out the nature of the poor performance, the improvement required, and the timescale for improvement. They should also specify how long they will remain current, and the consequences of further failure to improve within that period.

Give the employee the right to appeal

If the employee feels the poor performance action against them is unjust, they should appeal in writing, specifying the grounds of their appeal. If they bring a tribunal claim without appealing, any compensation they are awarded may be reduced.

The appeal should be heard without delay, ideally at an agreed time and place, and should be conducted impartially by a manager who (where possible) has not been previously involved. The employee can bring a companion to the appeal hearing.

How can we help your business?

To discuss your matter further and to make sure you are following the correct procedure, or discuss any queries if you are engaged in this process, please contact our employment lawyers who will be more than happy to help.

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