Tribunal risks of performance management

Employers want to mitigate the risks of Employment Tribunals claims at all costs, but sometimes errors creep in when managing performance issues which leave them vulnerable to claims.

Here are four mistakes employers need to avoid:

1  Dismissing an employee without going through the organisation’s performance management procedure

All employers should have a step by step performance management procedure in their Employee Handbook. For those employees with less than two years service, the steps may be condensed but we would strongly recommend that you seek legal advice in these circumstances.

An employee should not normally be dismissed for performance reasons unless they have received previous warnings. They must understand their shortcomings and what is expected of them. They need to be given the chance to improve and be provided with all the necessary support to get their performance back up to scratch. You should also consider if there are any viable alternatives to dismissal, for example deploying them to another suitable role.

Failure to give them a warning or chances to improve will likely result in the dismissal being considered unfair.

2  Not having enough evidence of an employee’s poor performance

It’s absolutely vital that you carefully document the outcomes of all formal reviews and do not give someone a fantastic rating if, in fact, there are serious shortcoming and concerns about their performance.

These types of documents may be needed if you decide to later dismiss the employee or select them for redundancy because their performance is poorer than their colleagues. An employee may challenge you, arguing that the real reason for dismissal is not actually performance, but to conceal another reason, for example whistleblowing or discrimination.

3  Not allowing employees to be accompanied

At any meetings under the formal performance management procedure, the employee must be allowed to be accompanied by a colleague or trade union official. While they cannot answer questions on behalf of the employee, they should be able to play a role in the meeting, mainly conferring with the employee and putting the employee’s case forward.

If you do not allow the employee to be accompanied, the employee may bring a claim to an Employment Tribunal and be awarded up to two weeks’ pay.

4  Failing to consider whether the performance issues are related to a disability

Before you start the performance management procedure, you need to consider whether the performance issues are related to a medical condition which could amount to a disability under the Equality Act and, if so, what reasonable adjustments can be made.

The definition of disability under the Equality Act is much broader than you may think. A worker will be considered disabled for the purposes of the Act if they can show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities.

A person will automatically meet the disability definition under the Equality Act 2010 if they have HIV, cancer or multiple sclerosis, but if they suffer from stress, anxiety or depression, they may also be considered disabled under the Act.

Someone who has a progressive condition, which are those that get worse as time progresses and are likely to have a substantial impact in the future, may also be classed disabled.

If you do just commence your formal performance management procedure without investigating this further, you leave yourself exposed to claims. We would strongly urge you to seek legal advice at the earliest opportunity when in such circumstances.

Director of Legal Services

James Tamm

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

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