Performance Management – What are an Employers Obligations?

Performance Management – What are the Employers Obligations?

Many Employers talk about the lack of performance of a member of staff.  At Clover HR we get lots of queries which use the word performance. However, after further investigation, when you get to the route of the problem the question is not often a performance issue at all but a conduct issue.

There is a clear difference between performance issues otherwise known legally as Capability issues and conduct issues. An easy way to differentiate the two issues is by remembering that Capability issues are attributable to a lack of skill “can’t cook”, whereas Conduct issues are largely attributed to a wilful choice or negligence of not carrying out what is required ie “won’t cook”.

This is not to be confused with Medical Capability. Where deficits or sub-optimal performance by the employee could be attributed to their health then the process of Medical Capability should apply. Medical Capability places further obligations on the employer such as looking at reasonable adjustments as the employee may be incapable of carrying out the role because of a disability, bringing further risk to the employer should any reasonable adjustments not be considered properly.

The first step is to define what the case is in terms of the above definitions, once this is established then the relevant process should be applied.

In the case of conduct where an employee constantly does not put a label on a box because they just do not want to or turns up repeatedly late for work because they cannot catch the bus on time for no good reason, this would be a conduct issue and the disciplinary process should be activated.

However, where an employee constantly makes mistakes due to a lack of skill, for example an inability to use a computer programme effectively such as Excel, or where the targets for selling are not met despite the employee carrying out the reasonable target set, then the Capability process will apply and should be activated.

Where Capability applies there is a clear liability on the employer to work with the employee to provide support to the employee to improve their performance to an acceptable level.  This support could take the shape of:

  • More regular 1-2-1’s;
  • Further training;
  • Temporary reduction in targets and coaching;
  • Mentoring;
  • Reasonable time to achieve such improvements set

Failure by the employer to look at their liability on an issue of Capability and to offer due support could result in the dismissal of the employee and the employee bringing a case for unfair dismissal. The duty on the employer is to be able to show that they have acted reasonably in these circumstances, and not set targets or challenges for improvement that are unachievable.

As a result, employers cannot usually defend a claim of unfair dismissal if they fail to provide proper instructions, or support for their employees at the outset or set unrealistic targets or too short a period in which to improve.

A further way to avoid the dismissal being unfair is to show the effort of the employer to collaborate with the employee. Ask the Employee what support they need and see what they say? Get them to agree the support being offered is fair where possible.   If an employee has been provided with training and support but still cannot meet the employer’s standards and are ultimately dismissed on the grounds of Capability a case for Unfair dismissal is less likely.

For more information on which process may apply, or to seek advice on applying a fair Capability process the please contact Clover HR on 0121 516 0299 or 01905 824051 email us at info@cloverhr.co.uk

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