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Day-to-day employment issues 3C

Performance management

One of the more tricky aspects of employment is dealing with cases of poor performance.   This is a sensitive issue for everyone involved and can be really time consuming. It needs to be handled with care and the conclusions fair, whether you’re asking to see an improvement in performance or setting up a series of warnings leading to dismissal.

There are a number of ways that you, and we, can make this whole process much easier and avoid potential claims relating to dismissal. We can help you with everything from drafting or updating your capability policy to assisting you in effectively managing capability and performance in your workplace. Or we can provide advice and practical assistance during a capability process. Finally we can help draft settlement agreements and guide you through negotiations with employees.

Whatever the problem, our lawyers can give key support and advice on all performance issues. Plus we can guide you through some of the best business practices to protect you including:

  • Consider the appropriate time to address any issues with employees and try to do so as soon as they arise
  • An informal meeting with an employee can resolve a problem. But they must be made aware that a formal process could be used if an issue remains unresolved
  • Keep records of any e-mails, letters, conversations or meetings (formal or informal) relating to their performance
  • Keep appraisals with employees regular to help the business to give an honest assessment of performance and allow the employee to raise any concerns
  • Don’t give flattering performance reviews if they’re undeserved. They could make it more difficult to dismiss an employee in the future as they will rely on what’s been said before
  • Use probationary periods effectively. If the business has any legitimate concerns about a new employee, it may be able to extend the period or dismiss them at the end of it
  • Employees should not be sidelined, bullied or shunned in order to “push” them to leave. This could lead to a claim for constructive dismissal
  • If possible, establish the reason(s) as to why the employee is underperforming
  • Be careful if stress could be a reason for an employee’s poor performance. In these circumstances, take legal advice
  • Always take employee grievances or claims raised seriously, and deal with them in line with your grievance policy
  • When going through a capability procedure, ensure that you act in line with your own policies and procedures, and also in line with the ACAS guidance
  • Where appropriate, give the employee a series of warnings and a chance to improve prior to dismissal
  • Sometimes, it may be appropriate for the business to explore the possibility of entering into a settlement agreement with an employee – in which the employee specifies that they will not bring a claim against their employer (and waives their right to do so) usually in return for a sum of money

Our Employment specialists

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