I have a number of employees who are not meeting expectations in terms of performance. How do I handle it?

Michelle Ryan writes:

In this email we will take a closer look at some practical advice on performance management.

The recent decision of the Employment Appeals Tribunal in Rachel Berthold v Google Ireland Limited (UD2147/2011) which saw €110,000 awarded to the claimant for unfair dismissal, places the spotlight back on performance related dismissals and more particularly, emphasises the high level of legal liability which can be incurred from improper performance management. In this email, we will set out some recommended steps in order to enhance the defence of performance management process.

In dismissing an employee on the grounds of performance, the Employment Appeals Tribunal has made it clear that an employer should be very slow to dismiss upon performance grounds without first telling the employee of the respects in which they are failing to do their job adequately, warning them of the impossibility or likelihood of dismissal on this ground and giving them an adequate opportunity to improve their performance.

In this regard it is vital that employers have a disciplinary procedure in place, which should be reviewed in order to ensure that it is up to date. Any disciplinary process that employers engage in with their employees in respect of their performance should be in compliance with their disciplinary procedure.

In advance of attending any disciplinary meeting, the employees should always be provided with a copy of this policy.

Practical tips for Performance Management:-

1. Ensure that the employee has a clear understanding of what performance requirements are expected of them. The employee should be clear on exactly what is required of them and this should be documented. For example many employers set out performance failings and expectations in a performance improvement document (PIP).

2. The EAT has consistently highlighted that the standard of performance that are required from the employees must be reasonable and also any review periods that are put in place must give them a realistic opportunity to improve their performance. What is considered a fair review period will vary depending on the specific facts of each individual case.

3. Employers should retain a clear paper trail of any performance issues so that they can show clearly and objectively where exactly the employee fell below expected standards.

4. Employees should be written to in advance of a disciplinary meeting and giving adequate time to prepare. A copy of the disciplinary policy should be enclosed and the employee should be afforded the right to bring representation in the form of a work colleague or, if the policy provides a trade union representative.

5. The person conducting the disciplinary meeting should be impartial and not connected with the underlining performance issues.

6. During the disciplinary meeting performances issues should be discussed with the employee in full and the steps taken to date in terms of training and meetings recapped on. It is important that any personal or other difficulties which the employee raises in mitigation, as affecting their performance should be listened to in full and taken into consideration by the Employer in determining what sanction if any, should be handed down.

7. The EAT has consistently underlined that an employee should be given the full opportunity during the disciplinary meeting to respond to the performance issues identified.

8. The disciplinary meeting can then be adjourned in order to give the Employer time to consider the appropriate sanction.

9. After the adjournment the meeting should be reconvened and the appropriate sanction i.e. a first written warning given to the employee. The employee must be specifically advised that if they continue to fail to meet effective performance standards, then this may lead to a further disciplinary action.

10. The employee should be given a review period and a performance improvement plan should be put in place. The purpose of this is to set out the employer’s requirements clearly to the employee giving them opportunity to improve.

11. It is important that after each stage in the disciplinary process the employee is afforded the right to appeal any sanction handed down. Any appeal should be directed to someone unconnected with the disciplinary hearing.

12. It is vital that the employee knows what work they will be expected to do during the review period and the standards they will be expected to achieve, in this regard goals and time frames must be realistic and not confined to a protracted time.