Peformance and Capability

Employers are not legally required to have any performance policies in place although the ACAS Code of Practice must be followed when dismissing an employee, see:

https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures

However, it is useful to have formal performance procedures in order to provide consistency and fairness and so staff members understand what is expected of them.

P13      Performance improvement policy and procedure

Regular appraisals, in conjunction with regular informal meetings, are helpful in identifying any training needs and areas of improvement before they become problematic.  However, if performance does not improve then it may be appropriate to use the performance policy.  For further guidance please see:

P1: How to Guide – Managing Poor Performance.

Employees with less than 2 years’ do  not have protection from unfair dismissal.  Therefore it is possible to dismiss a short serving employee for poor performance issuing any previous formal warnings.  However, some employment claims, such as discrimination claims, do not require the employee to have a minimum level of service, and therefore following the normal performance process may be a safer option.  Furthermore, recruiting and training staff can be time consuming and costly so it is usually a good idea to raise the problem with the employee to give them an opportunity to address this before considering dismissal.

Our HR Protect performance improvement policy, P13: Performance Improvement Policy and Procedure applies to all employees but expressly states that employees with less than 2 years’ service can be dismissed without any previous warnings.

Normally this would involve inviting the employee to a meeting to discuss their performance, setting out your concerns and then setting a plan for improvement.  If the required improvements are not made formal meetings are arranged, resulting in performance improvement warnings and ultimately, if there is no/insufficient improvement, the employee is dismissed.  For a clear visual explanation of the process please refer to:

P2: flowchart of performance management process

The performance improvement process broadly involves:

• Identify the performance issues
• If the performance issues have not been addressed with the employee at all an informal discussion should usually take place to provide an opportunity to improve before moving on to the formal stage.
• Invite the employee to a performance improvement meeting, setting out the performance concerns, see:

P3: Invitation to stage 1 performance improvement meeting

P7: Letter of invitation to short serving employee potential dismissal for poor performance

• Hold the meeting with the employee and allowing the employee to respond to the allegations and agreeing a timescale for improvement, see:

P15: Guide to Conducting Formal Performance Improvement Meetings

• Deciding on an appropriate sanction, confirming this in writing, see:

P8: Written warning (poor performance)

P12: Termination of Employment Short Serving Employee (Poor Performance)

• If the performance does not improve then invite them to a further meeting, see:

P4: Invitation to stage 2 performance improvement meeting

• Confirming the outcome, see:

P9: Final Written Warning (Poor Performance)

• If the performance still hasn’t improved invite the employee to a final meeting to consider dismissal, see:

P5: Invitation to stage 3 performance improvement meeting.

• Confirm the outcome, see:

P10:Termination of Employment (Poor Performance)

• If someone exercises their right of appeal then invite them to an appeal meeting, see:

P9: Invitation to Appeal Meeting

• Hold the appeal meeting and decide on an outcome to the appeal:

P16: Guide to Conducting Appeal Meeting

P11: Appeal Outcome Letter

If the incompetence was wilful then it should be dealt with as misconduct, and if this is gross misconduct then the individual can potentially be safely dismissed for this one-off act.  However, assuming that it was not intentional, then it will be difficult to dismiss for a single act.  This is because the purpose of a performance improvement policy is to support the employee to improve.  Only if their performance does not improve can dismissal be justified.  Despite this, in very rare cases dismissal can be justified if the incompetence had particularly serious or hazardous consequences.

This depends on the circumstances. If there is a pattern of the employee’s performance dipping as soon as the warning period has ended it may be reasonable to extend the warning period.  However, if the underperformance is suspected to be intentional it may be better to deal with it as misconduct.

Yes, the right to be accompanied, which applies to all employees, applies to performance meetings.  This is because any action which can result in a disciplinary action, including dismissal, triggers the right to be accompanied and so the employee has the right to be accompanied by either a colleague or Trade Union representative. Where the employer fails to allow the employee to be accompanied to a disciplinary meeting and they subsequently bring a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation.

• Not accurately characterising the problem. There can be a cross-over between poor conduct (which should be dealt with under your disciplinary procedure) and poor performance.  It is therefore important to establish the cause of the problem at an early stage.  For example, if an employee’s stock take indicates that stock is going missing it may be due to theft (conduct) or because the employee does not know how to conduct a thorough stock-take (performance).  Equally slow performance could be due to poor performance caused by a lack of training or it could be due to laziness which would be a conduct matter and it is important to identify correctly what the issues are.
• Not raising performance problems in a timely manner. This is important because raising the problem early makes it easier for the employee to improve their performance, which is often cheaper and less time consuming than recruiting a replacement.  It also means that the employer can make a decision about the employee’s future before they achieve 2 years’ service and also prove that the employee was given a chance to turn things around which is more likely to make any dismissal fair.  Allowing poor performance to carry on for a considerable time without any intervention can also make it more difficult to dismiss, and is very frustrating for the employer!
• Not obtaining sufficient evidence to support the poor performance. Documentary evidence should be gathered and sent to the employee in the letter inviting them to the first meeting.   The evidence should then be discussed and the discussion documented in the notes of the performance hearings.  A dismissal risks being unfair if the investigation into the poor performance was not reasonable.
• Not giving the employee sufficient time or support to improve. This is fact sensitive and will depend on the nature of the poor performance, the employee’s explanation, their length of service, the training they have had, whether there have been any changes to their work etc.