Comments are closed. Dealing with an employee’s poor performance is perhaps one of the mostfamiliar problems faced by an HR professional, and yet it is one that is notoriouslydifficult to measure. How much time should you allow to show improvement? Howdo you measure that improvement? And what of the question of the part-timeworker? Joanna Broadbent and Sam Whitaker provide some answersProbationary periodRebecca is a sales person for A Limited. She passed her probationary period,but has not met her sales targets since. Can A Limited dismiss her immediatelyfor poor performance or will it have to follow a proper procedure? JB comments: If Rebecca hasbeen employed for less than a year, she will not be able to bring an unfairdismissal complaint. A Limited may therefore decide to dismiss her immediately.However, Rebecca could still bring a sex, race or disability discriminationclaim alleging other staff have been or would be treated more favourably. ALimited could follow a fair procedure to minimise the risk of such a claim. Where Rebecca has more than a year’s service, she has protection againstunfair dismissal. A Limited will need to show a permitted reason for thedismissal (such as capability) and that it acted reasonably in dismissing her. To show that it has acted reasonably, a proper procedure should be followed.This means investigating the cause of the poor performance, warning Rebecca andgiving her a chance to improve. A Limited should ask Rebecca to attend ameeting and tell her about the problems with her performance beforehand. If themeeting may result in disciplinary action, a fellow employee or trade unionrepresentative can accompany Rebecca, even if the union is not recognised.Rebecca must have a chance to explain her performance, and A Limited must thendecide whether a warning is appropriate and if so at what level. It will almost certainly be unfair to dismiss Rebecca without giving her aformal warning. The warning should say what improvement is required, by whenand what will happen if she does not improve. A Limited should then considerwhether it can help her meet that standard, for example by providing extratraining or a more experienced employee to assist her. As a practical point, it is important for employers to deal with poorperformance when it arises. It is obviously less risky to dismiss a poorperformer before he has a year’s service than afterwards, but dismissingsomeone immediately before he reaches a year’s service is not risk free. Ifsuch an employee is dismissed immediately, but would have attained a year’sservice if he had been given his statutory notice (one week), he will legallybe deemed to have a year’s service, and will therefore be able to bring anunfair dismissal complaint. Improvement timeJason, a secretary, has been given a written warning about the accuracy andspeed of his work. His employer, B&C Co, has warned him that he may bedismissed if his performance does not improve. It now wants to know how long ithas to wait for an improvement, and whether it can dismiss if the desiredimprovement does not take place. SW comments: How long someoneshould be given to improve depends on the circumstances, in particular how longhe is likely to take to show any improvement. For example, a secretary wouldoften be able to show an improvement within four to six weeks. In contrast, asales person might need a longer period to demonstrate improvement, as there islikely to be a gap before improved performance is reflected in sales figures. The cause of poor performance will also be relevant to what will be areasonable period. If illness or a lack of training is at the root of theproblem, a longer period may be needed. Other factors for B&C to bear inmind will be Jason’s length of service, how long he has been aware of theproblems with his performance and the extent to which his performance fallsbelow the expected standards. If Jason does not improve within a reasonableperiod, it will not be fair for B&C to simply dismiss him. It will stillneed to follow a fair procedure, by investigating the cause of the problem, andconsidering whether a further warning and period for improvement should begiven. In Jason’s case it will probably be appropriate for anotherinvestigation and meeting to be held and a final written warning given. IfJason does not improve then, dismissal may be appropriate, but a fair procedurewill again need to be followed. This will include having another meeting withJason to discuss the situation and giving him a chance to explain. B&C willthen have to consider whether there is suitable alternative employment that hecould be offered before taking a decision to dismiss. Written warningsOne of D Limited’s employees, Paul, was given a final written warning andthree months to improve his performance, failing which he would be dismissed.He made some improvement in those three months, so no further action was taken.Two months later Paul’s performance is again poor. Can D Limited rely on theearlier warnings? SW comments: Where a warningfor misconduct has expired, it will generally be unfair for an employer to takeit into account when deciding whether to dismiss the employee for furthermisconduct. The position in capability dismissals is slightly different. In Kraft Foods Ltd v Fox (1978, ICR 311) the EAT recognised that an employerwill not necessarily be acting unfairly just because one period for improvementpasses and a further period is given: “it may well be that the employer isbeing over-generous; but being over-generous is not the same thing as beingunreasonable”. It may therefore be fair for D Limited to rely on theearlier warnings and dismiss Paul now. To increase the chances of such adismissal being fair, it would be sensible for employers to write to anemployee at the end of the initial improvement period, saying that dismissalmay still result if the improvement is not maintained. The period of time thathas elapsed since the original period expired will also be relevant to whetheran employer is acting fairly. Part-timeE Co has started action against Jessica because of poor performance. Shecomplains that the allegations are being made because she works part-time. Shesays that Dina and Fred, full-time employees who do the same job, are poorperformers, but that they have not been subject to any disciplinary action.What steps should E Co take as a result of these allegations and what are the risksinvolved? JB comments: The Part TimeWorker (Prevention of Less Favourable Treatment) Regulations 2000 came intoforce on 1 July 2000. Since then, part-time workers have had the right not tobe treated less favourably than comparable full-time staff just because oftheir part-time status. If action is only being taken against Jessica becauseshe works part-time (and she can show that a similar full-time worker such asFred or Dina has not received that treatment), she can argue that she has beensubjected to less favourable treatment. If her tribunal claim succeeds,unlimited compensation could be awarded. To reduce the risk of a claim, E Co will need to investigate Jessica’scomplaints before taking any further action. In particular, it will need to lookinto Fred and Dina’s performance and establish whether it is better thanJessica’s. If it is, Jessica is not being treated less favourably, and E Cowill want to address its concerns with her performance. If Jessica’sperformance is no worse than anybody else’s, proceedings against her will haveto be dropped, or proceedings against the other employees started. As part ofthe investigation, E Co should consider how it would demonstrate to anemployment tribunal that Jessica’s performance is worse than that of othermembers of staff. Something more than a subjective assessment is likely to berequired, such as past performance appraisals and concrete examples of theareas in which Jessica’s performance is below standard. If action is continued, Jessica could try to argue she is being victimisedbecause of her allegation that she has received less favourable treatment as apart time worker. To combat such an allegation, E Co will need to show thatproceedings for poor performance had already started before the allegationswere made, that it thoroughly investigated the allegations and that thetreatment given to Jessica is no different from that given to any other underperforming member of staff. Victimisation claims may be harder to defend if theinitial investigation showed that Dina and Fred were not performing adequately.Sam Whitaker is an associate, and Joanna Broadbent a senior professionalsupport lawyer, at Freshfields Bruckhaus Deringer Room for improvementOn 1 May 2001 in Personnel Today Previous Article Next Article Related posts:No related photos.