If an employee has successfully completed any relevant probation period with you, but subsequently, it turns out that their performance is not to the level you'd expect, so they're not meeting the requirements of their job description, you're entitled to consider a performance, or 'capability' process.
Is it a performance or a misconduct situation?
There's a key difference between 'capability' processes (relating to performance standards or competence) and disciplinary ones (targeting bad behaviour).
So make sure you're being supported by the right process before you kick it off.
Performance is all about the outcome of the employee's work: the question of whether it's satisfactory and/or if the employee is competent to meet the standards required.
If, however, your concern is more about the employee's behaviour and/or attitude towards the doing of the work, you may need to apply a misconduct process instead.
Take a look at our step-by-step guide on how to handle employee misconduct if your concerns are more about conduct than the competence or capabilities of your employee.
Employee still in their probation period?
Employees who are still within their probation period should be considered differently.
Take a look at our guide to probation periods and follow the guidance and template suite of letters there.
You can't simply instantaneously dismiss an employee on probation - expect in exceptional circumstances where they've committed gross misconduct.
But you can follow a relatively swift process of performance review and dismissal, if they're not achieving the levels of competence that are reasonably required to meet their job description and you do not have reasonable expectation of this position changing.
Remember: this guide focused only on handling performance or capability concerns about employees – it doesn't cover concerns about workers or independent contractors/freelancers.
If you've ruled out probation periods and misconduct, and you're confident that your concerns relate to your employee struggling with the job description that they've been tasked to meet, this guide will guide you through the appropriate next steps.
What are performance issues?
A piece of work not being up to the required standard, or work being produced too slowly, will be performance related matters and these are the ones you'll be able to deal with under a capability procedure.
Your best guide to handling each step of the process is your
Make sure you have one of these in place. Every business, even if they only have one or two employees, should have one of these.
This policy sets out your performance review procedure in detail.
You should carefully follow the procedure set out and ensure that your employee also does so. All employees should be able to access an up-to-date copy of the policy. It must be written and presented clearly.
Is the performance improvement policy part of the employment contract?
This will depend on the wording of the employment contract that you've agreed with your employee.
Our expert partner, Wilkes, recommends that you do not make the exact wording of the policy part of the contract terms.
They do recommend however, that you include a clause in the employment contract that requires the employee to comply with all your policies, which you have the right to update, in your discretion, from time to time.
Farillio's employment contracts all contain that wording.
How to tackle performance issues: an overview
It's not always possible to know before you meet your employee how they'll react to you raising concerns about their performance.
The moment you raise a concern, the employee's immediate focus is likely to be whether their job is at risk.
You may find, for example, that they don't agree with your assessment which may cause them to become defensive, hostile or upset and tearful.
It might be that your member of staff's going through a difficult time in their life which you weren't aware of.
Or, maybe they'll even agree with you that the job is proving too challenging, and you both decide that they could be best supported by some training or additional supervision to try and resolve the position.
Performance standards can sometimes be difficult to nail down
Also keep in mind that performance-related matters can feel a bit of a grey area, because even when you have quality standards, assessing someone against these can sometimes feel quite subjective.
The reason underlying the performance issues, the gap between what's being produced and what you need, and the employee's reaction to you raising your concerns, will all help to inform your approach about how to best address your concerns.
Performance concerns should not come as a surprise to the employee
Employees should be kept up to date on how they're doing and where there may be areas for improvement.
Regular, constructive feedback on their performance, that is provided to them at the time they are carrying out the task(s) to which the feedback relates, is highly recommended by leading HR and legal experts.
Where there is a shortfall in performance standards, that feedback should contain practical and reasonable instructions about what the employee can or should do to ensure that they better meet the standards required - and by when they should demonstrate this improvement.
This approach is fair to the employee, since it gives them clarity over where they may need to do something differently.
It also gives them the chance to demonstrate their true potential, by making those changes so that they can better meet expectations.
The 5 stages in an performance improvement procedure
Not counting the essential ongoing and regular verbal (or less formal) feedback described above, there are 5 main stages to a robust performance improvement process.
Farillio's performance improvement policy template sets them out.
How to approach these steps
You should ensure that both you and the employee follow them closely.
The employee must be able to easily access an up-to-date version of this policy and it must be written in language that they will readily understand (no jargon!).
Take each stage in the order that it is described. In this way, you'll ensure 2 crucial elements to a lawful performance management process:
that your employee has the opportunity and time to address the concerns you've raised and
you can show that your stance, your conclusions and the process underpinning them, is fair, transparent and objective.
Meaning you should be well-placed to avoid any potential employee claims against you for unfair dismissal or discrimination.)
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