HR expert Vicky Stanton offers advice on following capability policies and procedures…
Do you manage poor performance under your staff discipline policy? Well my advice to you is don’t! Staff discipline matters are for when someone has broken the rules; capability is more about how a staff member is doing her job, and managing her to a place of good performance or, if necessary, out of the business. You need to make sure you have a separate capability policy and procedure.
The minute you start talking to a member of your staff about her performance, keep notes. With the worst case scenario in mind, an employment tribunal only know what they are told. If you can make contemporaneous notes, this is better – maybe even use a voice recorder; it’s hard to argue over this type of evidence.
Dismissal for capability is acceptable providing the employer has carried out a fair process. So do all of your employees know what is expected of them? Do you take steps to minimise the risk of poor performance? Do you appraise employees properly, and do you highlight shortcomings and keep records? Do you provide training, supervision and encouragement? Do you warn employees of the consequences and give them chances to improve?
Before we look at the ideal procedure for you to undertake, it’s important to think about how Disability Discrimination may feature in capability. You need to consider if there’s a health reason for the poor performance issues. If someone is unfairly dismissed for a disability discrimination there is no limit on compensation and there is no qualifying period in terms of length of service. You need to consider if the employee requires any adjustments to enable her performance to improve and if they are reasonable for you as an employer to make.
If you commence capability proceedings with an employee, make sure you carry them through to a successful outcome. It’s worse than doing nothing at all if you start the process and then let it lapse. Tackling capability matters shows other employees that you will challenge poor performance; doing nothing will demotivate your good performers.
Start with a preliminary or informal process. Sit down with your employee and talk to her about her performance. Ask her open-ended questions (Why? What? When? Where? Which? How?) to establish what the issues are. Ascertain whether or not she understands her role and your expectations. Ask if she requires any further training/if there are any external-to-work matters that are impacting on her performance.
Once you have discussed all relevant matters, agree an action plan. Write it down and both commit to it. Set a date for review.
If the poor performance continues, you need to gain some preliminary information and then invite the employee to a meeting. This should be done formally by way of a letter. The employee is entitled to representation in the same way she would at any other formal meeting with management. This will lead to the formal capability meeting. This is a more formal approach than the stage outlined above but follows the same pattern. This time though, you will have the action plan to refer to and the lack of performance in meeting the objectives.
At the conclusion of this meeting, the employee will be issued with an improvement notice. This should state what the poor performance is, what improvement is expected, the timescale and the consequences of not achieving the action plan. The employee does have the right of appeal.
It is normal practice for this process to be followed with two more formal meetings, with the final meeting being a potential dismissal meeting (aligning itself to the ACAS misconduct processes).
● Who conducts the meetings – manager or owner?
● Who will hear any dismissal hearings?
● What will you do if the employee will not attend? My advice here is to switch to the absence management process.
● How will you take minutes of the meetings?
● Timings of the meetings? Be fair – 3–4 days’ notice.
● Do what you say you will do. If you expect the employee to keep her side of the agreement, you need to keep yours.
Be professional in your note-taking (don’t doodle; your notes will be evidence in the employment tribunal) and if you record it, don’t eat an apple – the ET didn’t look favourably on the employer who could be heard munching throughout a dismissal hearing!
Vicky Stanton is director of HR 4 Your Nursery, a professional HR consultancy working specifically with nursery and preschool owners and managers to take the challenge out of people management.
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