A member of my team is under-performing in their role. As the employer, what are my legal obligations in addressing this?

A member of my team is under-performing in their role. As the employer, what are my legal obligations in addressing this?

Employment Law

It is quite common for employers of all shapes and sizes to experience staff under-performing in their role. There could be a variety of reasons for this, ranging from a general lack of ability and apathy, personal issues affecting performance, unreasonable and unrealistic targets and work overload to a lack of training.

Many larger employers will no doubt have comprehensive performance improvement policies (PIPs) combined with disciplinary procedures to address these issues. These may be either contractual, in which case they must be followed, or they may be non-contractual which means that they may not be followed.

However, whatever the size and resources of the employer’s business, if the under-performing member of staff has in excess of two years’ continuous service then they have ordinary unfair dismissal rights that they can pursue. The employer will in these circumstances be at risk if they simply terminate the employment relationship without following some form of fair process.

Here are some handy tips that it is recommended that employers follow if any members of their workforce are under-performing in their role.

  1. From the outset it is probably best to have an informal discussion with the employee in question and as soon as possible, commonly known as counselling. As the employer you will be able to find out why the employee is under-performing and whether there are any mitigating circumstances, for example personal problems at home, looking after dependents causing tiredness or any other external factors. It may well transpire that the employer is at fault for creating an increased workload where for example, staff have left and are not replaced creating additional work or it could be that the employee is having problems with a new system of work and that more training is required.
  2. If there are no obvious causes for the under-performance and if counselling fails to address the problem, then it is recommended that the employer follows a formal disciplinary process which can be combined with some form of performance improvement plan. The aim of this is to improve standards of work and not to punish the employee in question.
  3. Where under-performance can be identified, the employer needs to bring this to the attention of the employee and to explain where there are gaps in their performance and what needs to be done by the employee (and the employer) to get them to an acceptable level of performance. This must be measured over a reasonable period of time and it is recommended that the employer provide continuing support and training if required.
  4. If performance improves then this should be the end of the matter. If performance does not improve to the required standard, then it is recommended that you implement an ACAS approved disciplinary procedure.
  5. This is usually a three to four stage process which involves arranging a disciplinary hearing where the allegations are backed up with examples of under-performance which can be put to the employee and where they need to be given a full opportunity to defend their position. Remember that the employee has the legal right to be accompanied by an independent work colleague or a trade union representative at a disciplinary hearing.
  6. It is recommended that full minutes are taken of the disciplinary hearing which can be provided to the employee for their review and verification. If the employee wishes to record the disciplinary hearing then as the employer you can refuse to allow this, however as the process should be open and transparent it could be argued that it would provide a contemporaneous record of the hearing and that the employer records the hearing which will aid the preparation of the minutes.
  7. As under-performance is usually not classed as gross misconduct (unless it involves an act that causes serious loss, financial or otherwise) then it is recommended that a series of warnings be issued at each stage of the disciplinary process.
  8. At the first stage it is recommended that a verbal warning be issued lasting up to 6 months of the employee’s record. Thereafter if performance fails to improve to the required standard, a first written warning can be issued, followed by a final written warning lasting up to 12 months on the employee’s record. The next stage would be dismissal with notice. Do also sure that performance targets are attainable and are measured over a reasonable period of time to give the employee the opportunity to improve.
  9. Remember to conduct a disciplinary hearing at each stage of the process and to allow a right of appeal against all disciplinary sanctions that are issued to the employee.
  10. Any appeal hearing should be conducted by a senior manager that was not involved in the initial decision to issue a disciplinary sanction. If the business is very small and there are not enough independent senior managers available, then it is recommended that the appeal is outsourced to an established HR practice or business professional to deal with.

Where employees have less than two years’ continuous service then they generally do not have any ordinary unfair dismissal rights and so technically you could dismiss with notice without going through a disciplinary process as there is less risk. However, you need to be careful that your disciplinary policy is not contractual or has not become a custom and practice as a consequence of using the policy for all members of staff over a period of time.

Remember too that employees have day one discrimination rights and it is important to ensure that you are not discriminating either directly or indirectly, for example where someone has a long-term ill health condition which could be a disability in law. We would also recommend that you follow an ACAS approved disciplinary procedure as set out in their Code of Practice. It is also good practice to follow these minimum standards for all members of staff regardless of their length of service.

If you have concerns about performance in the workplace and how to deal with it, then contact Steven Eckett – Partner and Head of Employment at Summit Law LLP.