It's not me, it's you - staff performance by Tina Buck, Direct Law and Personnel on 26-Mar-2013

Although these words are usually used during the break-up of a relationship, they can also be associated with that of a relationship between employer and employee. When you have an employee that isn’t performing you may feel like you are banging your head against a brick wall. They could be costing your business time and money and all you want to do is dismiss them – don’t! This problem can be easily rectified, but you have to follow a process.

Being stuck in this unfortunate situation can become emotionally charged but you have to be mindful of not becoming one of the thousands of employment tribunals that are accepted yearly. There are generally two reasons why an employee isn’t performing: they may not be capable; or they may be wilfully failing to perform.

The first step is to sit down with your employee and talk. They may not understand what is required of them, feel unmotivated or undervalued, maybe something is happening in their private life. Either way you will never know unless you have a conversation. Once you have established why your employee’s performance has changed, you can develop a plan to support and guide them. This could be a training plan or signposting to external services. Whatever it is, it should be proactive and demonstrate to your employee you are a caring company. Taking an interest demonstrates you value their work and contributions and provides them with a morale boost. We see amazing changes in employees when they receive encouragement, their performance always improves.

However, you may have that one employee whom no matter what advice, guidance and tutoring you give them they simply do not wish to improve. In this instance it is definitely them, but prior to dismissal, you as an employer have a duty to evidence that you have given that person all the training and assistance they need to perform. If you can evidence this then it clear it is the employee’s own actions that have ultimately lead to their dismissal.

So, back to the process: you should have had an informal chat. If no improvement has been made within a reasonable timescale, say one month, then you can proceed with formal action. This means inviting the employee, in writing, to a disciplinary hearing and putting the allegations to them that they are not performing. 48 hours’ notice should be given to the employee to provide them with the opportunity to respond and ultimately to ensure a fair process is conducted.

Once investigations have been conducted, you would then establish which particular sanction you wish to give them. Most employers would initially issue a performance note and as such get both parties to sign to the agreed timescale and matters which need to be rectified.

Unfortunately, the employee may not improve in the areas or timescales set and as such you may have to proceed with formal action again. However, as you have given them the opportunity to improve, and both parties agreed this was perfectly achievable, you may have enough to either issue the employee with a final written warning or, if the performance is wholly unacceptable, you may be able to dismiss the employee.

While this does appear to be a legal minefield, you always have to bear in mind what a ‘reasonable’ employer would do. If you offer assistance, training and guidance and you have met your end of the bargain and it would be unreasonable for any Employment Tribunal to lay blame at your door.

Remember, as long as you have the evidence to hand - and by that I mean a clear audit trail - you can back up any decision you have had to make as a result of your employee’s actions. It really is better to take the emotion out of the situation and follow the process.

For more information about employment law and HR, please visit: www.dlp.org.uk

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