Underperformance (Premium)

MANAGING UNDER PERFORMANCE

Causes of Under Performance

People may be underperforming for three main reasons:

  1. They lack the knowledge, skills or aptitude for the job (ability.
  2. They are unable to fulfil their duties due to sickness absence (personal circumstances).
  3. They are not applying their knowledge and skills to the job (attitude).

Legally, the first two problems come under the potentially fair reason for dismissal of capability whereas the third is conduct and is a disciplinary issue. Often, capability due to sickness is managed under the company discipline rules and this has in the past been favoured by many legal practitioners and advisors, including ACAS. However, it is now considered by the CIPD and many Employment Tribunals to be better practice to have a separate procedure for discipline, where the employee is culpable and chooses not to follow the rules (won’t do ie conduct) and situations where the employee may be trying their best, but is falling short of the standards deemed acceptable by the company (can’t do ie capability). The procedures are broadly similar but the manner of implementation is different with more support and opportunity to improve in capability cases. Link to Discipline and capability guidelines and handbook

How do you Decide Which Procedure to Use?

It is important to try to understand the reasons why an employee is underperforming. You need to consider whether it is that the employee is unable to do the job or is deliberately not doing the job. It can be quite difficult to establish initially which category the underperformance comes under. If in doubt it is best to start with the disciplinary procedure and see what reasons the employee gives for the underperformance. If the answers are in the capability area, such as lack of training or equipment, then change to the capability procedure.

Can’t do (Capability) –is not fault based, they cannot help themselves. These include:

  • Lack of training
  • Lack of innate ability- a recruitment or promotion mistake
  • Changes in the requirements of the job
  • Alcohol or drug problems
  • Stress or bullying
  • Health or disability
  • Square peg in round hole – does not fit the company culture/ethos. Link to Capability procedure handbook and link to procedure below

Won’t do (Discipline)– this is where an individual can perform to the standards but deliberately and knowingly chooses to perform in unacceptable way.

This is often due to an attitude problem which may be caused by:

  • An intrinsic personality trait
  • A relationship breakdown
  • Becoming alienated from the company- lack of loyalty, feeling undervalued
  • Problems in their personal life affecting work. Link discipline procedure

Significantly, the employer will often bear some responsibility for the first category of capability. Where a lack of ability is the problem it is likely to be due, in some part, to their actions. They may have made a poor recruitment or promotion decision or there has been a change in company requirements which the employee cannot meet, possibly with inadequate training.

There is a third category of absence which is often hidden under the guise of sickness which is to cover for domestic problems such as a sick child or other dependant. Lateness may also have underlying domestic or personal problems and the reasons should be explored fully so as to avoid discrimination of grounds of sex or disability. In these cases you may wish to consider adjusting the standards for a time and review it after a reasonable period.

Sometimes sick absences and capability to perform are interlinked. An employee who is taking unusual amounts of sick leave or is making mistakes at work could well have difficulty in doing the job or have a personal problem. The two issues could be the early manifestations of a serious medical problem, possibly of a difficult psychological nature. They should not be ignored.
Dealing with Problems

People are often at best disingenuous and sometimes downright lie when it comes to the real reason for their lack of ability and absences so how do you decide on the correct underlying reason? This is understandable, no-one wants to admit, even to themselves, that they are not coping and are not up to the job. When handling issues of performance it is essential to understand that one is dealing with sensitive and deep rooted perceptions of oneself and they are not easily changed. Evidence based on facts is very helpful in dealing with this.

Dealing with underperformance can raise a number of problems:

  • Deciding what the real reason is for the underperformance.
  • Tackling the under performance and maintaining the employee’s self-respect and commitment is difficult. What do you say to them? Link to meeting below
  • It may result in a grievance being raised, possibly with a discrimination claim, with commensurate time delays and costs. Link to grievance procedure
  • If badly handled, it could ultimately lead to an unfair dismissal or constructive dismissal claim in an Employment Tribunal.
  • When dealing with under-performance due to health or personal issues, the prudent employer must always be aware of the potential for the employee being classified as disabled under the Equality Act 2010 and care must be taken not to discriminate on the basis of their disability either consciously (direct discrimination) or, more commonly, unconsciously (indirect discrimination). Link to Managing Absence guidelines on disability

This raises many questions:

  • How do I know if an employee is disabled?
  • What does that mean in terms of what I can do?
  • What can I do if they are disabled but they don’t improve?
  • How do I deal with it if they go off sick with stress?
  • What happens if they won’t or can’t attend meetings?

Link to Managing Absence guidelines

Maintaining the Employee’s Self Esteem

When tackling issues of poor performance it is very important to tread carefully so as not to destroy the employee’s confidence. Apart from it being kind, it is in the employer’s interests not to tip the employee into being absence with stress. The key things to remember are:

  • Use a kind tone of voice not critical.
  • Show concern and check there is nothing in their personal life affecting them.
  • Ask if there is anything the company has failed to do or they can do to help.
  • Just because the employee is not meeting the standards for this job it does not mean they are failures at everything.
  • Take some responsibility on you and the company- maybe we made a recruitment or promotion mistake and this is not the right role for you – maybe they are a square peg in a round hole
  • Focus on the facts not the person and try not to attack them as a person. Do not say “you are no good at this” or “you haven’t done …” Try and use neutral terminology “these targets haven’t been met can you explain why” or “the customer has complained about [state the fact rather than you]. If it is them and the way they have spoken to the customer then use perceptions. “The customer believes that” or “the customer took it to mean x when you said/did y”.

The Capability Procedure

The stages of the procedure are broadly the same as the disciplinary procedure. For more detail on the procedure see Link to capability procedure in handbook

Investigate

Check the employee has been set realistic targets and objectives and that it is not due to medical conditions.

Gather the facts and any evidence to support your concerns such as targets not met, slow working, mistakes, complaints from colleagues and/or customers. A general statement that the employee is not up to standard will inevitably result in the question how am I not performing? You will need examples.

Informal Meeting

Ask the employee to a meeting to discuss the concerns. If the issue is not yet serious this could be an informal meeting. The approach should be questioning not accusatory. Ask the employee if they have an explanation for the issues you have identified. If there is an easy solution, for example training, put that in place and monitor progress. If the employee says they are overloaded, but you feel they are not, you will need to explore how they are managing their time and how they approach the tasks. If they have a medical problem which you were unaware of then use the medical report process in the discipline or sick absence procedure. Link to discipline /sick absence

Formal Meeting

If the matter is more serious or previous informal discussions have had no effect then the meeting should be conducted under the formal capability procedure.

The employee should be invited in writing to a formal meeting to discuss their performance. The letter should give details of the time and venue for the meeting, and it must contain sufficient information about the nature of the under-performance for the employee to understand it and to be able to prepare to answer the concerns. The employee must be informed of his or her right to be accompanied at the meeting by a work colleague or suitably qualified Trade Union representative as for a discipline interview. They have the right to postpone the meeting for up to five working days if their representative cannot attend. This is their only right; they do not have the right to postpone because their solicitor is not available for instance. For a sample letter click Link to disciplinary letters section.

Outcomes

Stage 1

If a satisfactory explanation is not given at the meeting the employee should be given a First Written Improvement Warning. This should set out the employee’s shortcomings, the level of performance and the improvement required, a realistic time limit for achieving that improvement and a consequence of failure to achieve or maintain the improvement.

Stage 2

If there is no, or insufficient improvement, or if the improvement is not maintained for the period stated, the employee should be invited to attend a meeting to discuss your performance as for a written warning. If a satisfactory explanation is not given at the meeting the employee should be given a final written Improvement warning. This will include the details as set out above, with an additional warning that failure to improve may result in dismissal.

Stage 3

If the performance continues to fail to meet the standard required then the employee should be invited to a formal meeting to ask for their comments on why they should not be dismissed.

Appeal

The employee should be given a right of appeal against any stage including dismissal.

For the full procedure see Link to capability procedure/handbook.