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These FAQs set out the common questions and pitfalls faced by employers when dealing with performance issues. The additional documents referred to are designed to assist you further. Please note that some documents are available to all readers whilst others are locked and only accessible to HR Protect clients. To become a retainer client or to find out further information please click here.
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
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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.
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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.
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P13 – Performance Improvement Policy and Procedure
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:
P3: Invitation to stage 1 performance improvement meeting
P7: Letter of invitation to short serving employee potential dismissal for poor performance
P15: Guide to Conducting Formal Performance Improvement Meetings
P8: Written warning (poor performance)
P12: Termination of Employment Short Serving Employee (Poor Performance)
P4: Invitation to stage 2 performance improvement meeting
P9: Final Written Warning (Poor Performance)
P5: Invitation to stage 3 performance improvement meeting.
P10:Termination of Employment (Poor Performance)
P9: Invitation to Appeal Meeting
P16: Guide to Conducting Appeal Meeting
P11: Appeal Outcome Letter
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P2 - Flowchart of performance management process
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P3 – Invitation to stage 1 performance improvement meeting
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P7 – Letter of invitation – short serving employee – potential dismissal
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P15 – Guide to Conducting Formal Performance Improvement Meetings
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P8 – Written Warning (Poor Performance)
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P12 – Termination of Employment – Short Serving Employee (Poor Performance)
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P4 – Invitation to stage 2 performance improvement meeting
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P9 – Final Written Warning (Poor Performance)
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P5 – Invitation to stage 3 performance improvement meeting
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P10 – Termination of Employment (Poor Performance)
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P6 – Invitation to Appeal Meeting
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P16 – Guide to Conducting Appeal Meeting
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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.
P2 – Flowchart of performance management process
P13 – Performance Improvement Policy and Procedure
P12 – Termination of Employment – Short Serving Employee (Poor Performance)
P10 – Termination of Employment (Poor Performance)
P9 – Final Written Warning (Poor Performance)
P8 – Written Warning (Poor Performance)
P7 – Letter of invitation – short serving employee – potential dismissal
P5 – Invitation to stage 3 performance improvement meeting
P4 – Invitation to stage 2 performance improvement meeting
P3 – Invitation to stage 1 performance improvement meeting
P11 – Appeal Outcome Letter
P6 – Invitation to Appeal Meeting
P16 – Guide to Conducting Appeal Meeting
P15 – Guide to Conducting Formal Performance Improvement Meetings
P14 – Performance improvement plan (PIP)
P1- How to Guide – Managing Poor Performance
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