Dealing with underperforming employees is arguably the least favourite responsibility of a manager and, therefore, it is often avoided for too long. Not only can it be unpleasant, but it is also fraught with legal complexities and is seen as a legal risk ‘minefield’.
Unfortunately, avoiding the disciplining of an employee for poor performance has effects that should not be underestimated:
Does your team or you have to allocate time to correct mistakes made by the underperforming staff member?
Are sales being lost due to continuous poor customer service?
Is your team morale, employee engagement and productivity being disrupted?
Managing a poor performance will take time upfront but will save you money, time and staff turnover in the long term.
Nip it in the bud approach
The best way to deal with poor performance is to deal with it, literally. If you remain fair and objective and manage the employee in a constructive and supportive way, you run minimal risk of breach of contract.
Address issues as they come up
Start addressing any issues informally as soon as they pop up. This helps if you proceed to a formal process later, as you will have a record of the informal interventions taken to help the employee.
Note: Unfair dismissal claims are weaker if they are filed within the first two years of employment; therefore, timing can be a motivation to address issues swiftly.
Set a probationary period
Always set a probationary period for new employees and dedicate that time to monitoring and coaching the employee. Then, nip any issues in the bud. This sends a strong message to new employees that good performance is valued and monitored from day one. They should also be made aware, in a non-threatening way, that the company/you will deal firmly with staff whose work is regularly below standard.
Informal intervention examples
With your swift action to intervene with poor performance, you can consider these three examples of informal steps to help underperforming employees:
This is a big issue common throughout SMMEs and large corporates. Every person is fifty per cent responsible for the success of their communication. Just like the speaker, the listener is fifty per cent responsible via the act of listening properly.
Ask the employee if they are clear about what is expected of them? If not, don’t repeat previous instructions but rather find another way of stating them. Visual versus audio, practical versus thick instruction books, etc.
If communication is clear for employees and expectations are fully understood, it is highly unlikely that you will be faced with poor performance issues down the line.
Remember to notice good performance as well. A simple ‘thank you’ or ‘well done’ goes a long way. Appreciated staff that get recognition will make an increased effort to maintain or improve their performance.
Performance management is made easier if your company is prepared for it with probationary policies, appraisal processes and capability procedures, etc. If you are a small business, hire an HR consultant to set these items up for you. The return on investment is huge when the time comes to use the structure.
It is also good business practice to encourage managers and employees to be open to receiving feedback as well as giving constructive feedback. It is a skill, and it would be valuable to teach the team how to do it.
When giving feedback, it is acceptable to praise an employee in front of colleagues, but discussing any problems should be done privately. In a performance discussion, remember to always remain objective and constructive:
Firstly, explain what the poor performance issue is. Keep a calm voice and body language.
Explain to the employee why you are raising this issue with them.
Remember to stick to the facts. Don’t make personal commentary, be objective and don’t try to be their buddy. If they start getting personal, ensure you avoid joining in – stick to the facts.
Explain, factually, what the impact is of the employee’s performance.
Explain the consequences of the employee’s poor performance.
Tell them about the solution and the performance expectations going forward.
Ask the employee to give you their opinion of this poor performance assessment.
Ask them to explain any hindrances that are causing them to struggle to perform to the expected standards. Don’t interrupt them or argue with them.
Be supportive, give advice and help them form a vision of the solution. The hindrance must be addressed before their performance improvement can be expected.
Be very specific, e.g. state that Procedure 1 must be followed or deadlines A to C needs to be met every day or every week etc.
This informal approach will usually stop other issues of poor performance from arising. The key is to remain supportive while being clear on the necessity for performance improvement.
With respect to record-keeping, keeping a note on file with the key points of the conversation would suffice or put them in writing to the employee. Clarifying things in writing always adds value when returning to a conversation in the future.
The next informal action
If poor performance persists, reconvene your performance meeting with the employee with the aim of going into greater detail. Make it very clear to the employee that the company wants to support them with a solution, be it training or mentoring, but the performance improvement is not negotiable, and it needs to happen within a specified period of time.
Factors that affect performance are sometimes outside work or are ‘soft’ factors within the work environment, e.g. exclusion by the rest of the staff. You, with the employee, need to find a solution and plan the way forward. Prepare a list of action points for both you and the employee to follow in order to drive up the performance quality.
At this point, it is best practice to write up the outcome of the meeting and supply a copy to the employee. There must be absolute clarity on the expectations over the upcoming weeks and the deadline.
This will hopefully avoid the need for a formal performance improvement process.
Moving to a formal process for an employee’s poor performance
If you have worked conscientiously through the informal chats strategy, including implementing support solutions, and performance remains poor, it is time for formal performance management.
However, the first step in starting a formal process is to get your ducks in a row. Do not take any first steps without being fully appraised of the current, correct procedure to follow. You will need a capability, performance or disciplinary management procedure.
Whichever procedure is nominated, you must ensure that it is fully aligned to the ACAS Code of Practice on Disciplinary and Grievance Procedures. As the outcome could be written warnings and dismissal, it is vital that the employee’s statutory rights are respected, and fairness prevails throughout.
The invitation letter
Once your preparation for the formal process has been done, you will initiate the process by sending an invite to the employee, inviting them to a formal performance management meeting.
Here are some guidelines to assist with the writing of the invitation letter:
Use everyday language, not loaded corporate-speak, to communicate that the employee’s performance gap is still unresolved. Explain the impact that the poor performance is having on the business performance.
Make it clear that the employee is not only invited to attend a formal meeting but is required to attend it.
Make it clear that their standard of performance will be discussed.
Include a copy of the policy and procedure you are using for this formal performance management process.
Advise them that they have the right to request a trade union representative or a work colleague to attend the meeting with them.
Include copies of any evidence related to performance and solutions, e.g. training courses, customer complaints and missed deadline details.
Include a list of the informal meeting dates in which performance expectations were mutually agreed.
Clearly state that a written warning will be issued to them if their performance levels are unacceptable.
Explain that they will be asked to present their case if they are in disagreement with the performance assessment or wish to present mitigating factors.
The formal meeting
One of the key guidelines for the meeting is to ensure you do not use language that suggests the outcome is pre-determined. The manager who is hearing the case must weigh up the facts from the manager and the employee. The outcome will determine whether a formal written warning is necessary or not.
If a warning is the route chosen, this must be urgently communicated to the employee in writing. The warning letter must include the reasons for the warning, explain the employees right to appeal and carefully layout what the employee is expected to do within clear deadlines to avoid the escalation of the process.
Continuing to manage the employee’s performance
The need for you to monitor the employee’s performance continues on an ongoing basis at this stage too. Any support or training agreed upon at the formal hearing must be carried out even if it was training that was executed during the informal process.
Keep detailed records of the meeting, the outcome, the items agreed, the support promised and when it was executed, as well as the employee’s performance within specified timelines.
If an improvement in performance transpires, you can discard the formal warning before it expires, but if there is no improvement, you will move towards a second formal meeting.
This process continues until it’s deemed reasonable to move to the dismissal hearing stage. Be very aware of your policies and remain strictly aligned with them. In lieu of that, book a consultation with an HR specialist. The very high-level overview is:
First written warning
Final written warning
If you have given the employee sufficient opportunity and support and you have followed them correctly, then a dismissal will be deemed fair.
Poor performance complications
As an astute business owner, you are undoubtedly aware that problems can complicate the performance management process.
Each problem will be unique, but there are two common occurrences and suggested solutions:
The employee may state that a previously undisclosed disability or health condition is affecting their performance. You are permitted to request medical evidence, but you should also get advice on what adjustments are required within reason.
The job-appropriate level of performance will still be required but tread carefully to avoid a disability discrimination claim. Get professional advice.
This is very common in a performance management process. The grievance of unfair treatment is raised against the manager handling the performance issues.
The grievance can be managed within the same process, and the employer is obliged to consider them. This is why poor performance must be addressed quickly, and no precedent of lingering poor performance is entertained.
When is poor performance a misconduct?
Unfortunately, some organisations class all staff issues as poor performance:
Constant poor procedure with expense claims
Crashing company cars
Attending work while under the influence
The companies declaring these as poor performance are usually nervous about appearing aggressive with the use of the word ‘misconduct’. On the other hand, some companies pretzel themselves into avoiding conflict by offering settlement agreements and literally pay for the problem to go away – fast.
Poor performance procedures do take time and money, in fact, six months or more. Misconduct, however, is actually a simpler process, so it is counter-intuitive to manage it via a poor performance process.
Poor performance and misconduct definition
The basic differences are:
Performance talks about ability. Poor performance can be due to a lack of training, insufficient experience, or being incorrectly hired for a role.
Misconduct talks about behaviour. Misconduct can be caused by a poor attitude to work, laziness, lying or abuse of privileges, ignoring instructions or not adhering to company procedures.
As with the poor performance process, it is vital that your knowledge is up to date and comprehensive before commencing any formal action. If this is done incorrectly, not only could it blowback on the company, but you will probably be left with the employee still working for you.
Issues that do not fall under performance nor misconduct will probably fall under Capability Grounds, such as ill-health issues, learning difficulties, disabilities etc.
Case study: poor performance vs misconduct
Employee ABC works as a cashier at a local corner shop. Their direct-report manager claims that employee ABC works below the required standard and proposes a poor performance procedure.
Discussion: If the cashier till is out by a few pence up to a few pounds each day is it because of:
Careless miscalculation of customers change
Not counting cash that customers hand over
Being tardy in handling cash
Stealing ‘spare’ coins
Not being capable of arithmetic
Being clumsy (dropping pennies on the floor)
Crumbling under pressure when the queue is long
Lack of confidence with challenging customers who short pay
Performance or misconduct?
Points 1-4 could be declared misconduct.
Points 5-8 are more likely to be declared a poor performance issue because:
The employee doesn’t have the skills or aptitude
Might be clumsy and forgetful
Hasn’t developed coping skills
Their assertiveness skills need development
Understanding the difference between performance and misconduct is only the starting point, but setting off in the right direction will save you time and money. As always, when in doubt, consult with a professional and always make sure that no matter how small your business is, you follow the letter of the law.
Now that you know more about discipline actions in the workplace, why not read some of our other business articles to further grow your knowledge! If you enjoyed this article, you might also enjoy ‘How To Make Someone Redundant’.