FEATURE INSIGHT
Performance management – a cautionary tale
Jade Linton, senior associate at Thursfields Solicitors, explores the risk employers face when focusing solely on the performance issue without addressing the underlying reason(s) behind it
I nstances of poor performance are unhelpful for business and employers are permitted to address poor performance provided they do so fairly. However, sanctioning the ‘what’ before addressing the ‘why’ is not good for business. A recent case In May 2019, a National Health Service (NHS) administrator was awarded £15,039 after her employer was found to have unfairly dismissed her for the repeated administrative errors she made after she developed cataracts (Denise Regan v Kent Community Health NHS Foundation Trust 2017). The employment tribunal found that the Trust had unfairly dismissed the employee after it had set “unrealistic targets” for performance improvements despite the employee’s health condition. The tribunal said that once the employee’s visual impairment became known, it was unreasonable for the Trust to “persist in requiring improvement – at least not without medical confirmation she could achieve the improvement required”. This ruling serves as a warning for employers that sanction employees for poor performance without exploring underlying reason(s) for it.
– also known as ‘capability procedure’ – should be on improvement and not punishment. If, after following a capability procedure – which should include setting fair, realistic targets, supervision training and support – an employee’s performance has not improved, only under these circumstances might a sanction (a warning) be justified with dismissal being the ultimate outcome if a sustained improvement is not seen. ...only under these circumstances might a sanction
to a protected characteristic (e.g. disability making it difficult for an employee to complete certain tasks) an employer would be expected to consider this reason when deciding on an appropriate sanction and/or when setting targets aimed at improvement (such as adjusting targets). An employer may be expected to signpost employees to particular services that may assist them in overcoming the reason for their poor performance (e.g. counselling services for personal matters impacting performance). Addressing the ‘what’ An employer that disciplines an employee for poor performance without considering underlying reasons effecting performance may risk a finding of unfair dismissal if that employee is eventually dismissed. It is for the employer to establish the reason or principal reason for dismissal in any unfair dismissal claim. Lack of clear evidence showing the employer considered whether other factors could have led to the poor performance is likely to prevent the employer demonstrating capability as a reason for dismissal. The law requires an employer to follow a fair procedure in managing poor performance. A ‘fair procedure’ will undoubtedly include consideration of external factors affecting performance and the provision of reasonable assistance in resolving such issues if it is in the employer’s power to do so.
(a warning) be justified with dismissal being the ultimate outcome...
Why? There will almost always be a ‘why’ in every instance of poor performance – ‘why’ being the reason – if not the main reason – for the unsatisfactory performance. The extent to which an employer will be required to establish and deal with the reason behind the poor performance will vary from situation to situation. Where the ‘why’ is resolvable or is linked
The focus The focus in any performance procedure
| Professional in Payroll, Pensions and Reward | December 2019 - January 2020 | Issue 56 42
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