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Your HR questions: How to manage staff underperformance

Employment lawyer Susan Bernstein answers a question about how to manage underperformance in the practice team

Q: I have a member of staff I am really unhappy with, nothing I give her to do is done properly so I have to double-check everything. I have tried to raise this with her but she pretends that she didn’t understand what was expected. It is faster to do things myself, but then she doesn’t have enough work to do. How can I manage this?

A: If your employee has less than two years’ employment, she will not be able to bring a claim for ordinary unfair dismissal against your practice if she were to be dismissed (but first check that she has no other potential claims, such as a discrimination claim or claim for wrongful dismissal, which is outside the ambit of this article).  

However, whatever the length of service of your employee, effective performance management is central to trying to get your employee engaged in her work so that she can take pride in her job and do her best for the practice.

Underperformance takes time to put right and may have a variety of causes, some of which may be outside the employee’s control, so it is important to give this person a real opportunity to improve.  

Informal meeting

Assuming your employee has been employed by the practice for more than two years, as an initial step have an informal meeting with her to discuss the problems carefully on a two-way basis, with the aim of working together to try and turn things around.

Rather than using the meeting simply to criticise and admonish her, you could start the meeting by explaining what the practice needs to achieve and how you see her role in helping the practice to reach that goal.  

You might like to ask her how she thinks she is doing in her role and only then explain why you consider that she is underperforming. You should then propose and agree with your employee an enhanced development plan with some appropriate objectives to be achieved over a period of say, two to three months with weekly progress meetings.

The SMART acronym is a useful way of setting the objectives. In other words, the objectives should be:

  • Specific – What does your employee need to achieve?
  • Measurable – How will you and your employee know when an objective has been achieved?
  • Achievable – Is the objective something your employee is capable of achieving?
  • Relevant – Do the objectives relate to those of the team or practice as a whole?
  • Timebound – When do the objectives need to be achieved?

Provide your employee with some guidance on how the SMART objectives you set can be achieved and give some actual examples.

If after two or three months, despite adequate support from you, your employee consistently fails to reach the required standard, you may decide to have a Section 111A pre-termination conversation with her, with a view to her employment being terminated on agreed terms under a settlement agreement.

Formal action

Alternatively, you may wish to take more formal action, which could ultimately result in dismissal if your employee fails to make the necessary improvement. Where this is the case, you must follow your practice’s written disciplinary procedure (or capability procedure if your practice has one), which should encompass the Acas Code of Practice on Disciplinary and Grievance Procedures

This will entail notifying your employee in writing of the alleged poor performance and the possible consequences with sufficient detail to enable her to prepare to answer the case at a disciplinary meeting. The notification should also give details of the disciplinary meeting and advise her of her right to be accompanied by a work colleague or trade union representative at the meeting.  

If it is decided that a first written warning (or final written warning if the employee’s unsatisfactory performance is sufficiently serious) is the appropriate action then the employee should be given an ‘improvement note’ setting out the nature of the performance problem, the improvement that is required, the timescale for achieving the improvement, a review date and any support, including training that the practice will provide to assist her.  

The amount of time which should be allowed for improvement depends on the facts, including the type of job, the level of incompetence, length of service and seniority. The extent of assistance that should be offered to the employee to help her improve depends on the size and administrative resources of the practice.

The employee should be informed that the improvement note represents the first stage of a formal procedure and is equivalent to a first written warning and that failure to improve could lead to a final written warning and, ultimately, dismissal. A copy of the note should be kept and used as the basis for monitoring and reviewing performance over a specified period, for example six months.

Performance management system

Putting this particular case to one side, it is good practice generally to have a performance management system in place to help managers regularly review the performance of all its staff and identify problems early on.  

This performance management system should include:

  1. Regular informal one to one meetings where line managers discuss current work and development. They offer the opportunity to feedback, to recognise achievement so as to encourage loyalty and progress as well as to identify possible problems.
  2. Formal interim reviews, quarterly or half yearly to celebrate achievements and offer constructive feedback where more needs to be done.
  3. Annual appraisal reviews where the work of the past year is discussed, feedback is given and objectives set for the forthcoming year. The objectives can then be reviewed in the regular informal one to one meetings and the formal interim reviews.

Obviously some employees are never going to make the grade but regular dialogue is at the heart of performance management and can prevent a small problem turning into a big one.

For further information see the ACAS How to Manage Performance booklet

Send us your questions

If you have a HR or employment law question, please email emma.bower@haymarket.com and we will try to answer this for you.

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