Sexual Harassment (including the problem of harassment by guests by Osf3YB8

VIEWS: 1 PAGES: 23

									Dealing with Poor Performance –
Legal and Practical Tools for HR Professionals
            and In-house Counsel




        Bettina Bender, Partner, CM Murray LLP



         CM Murray LLP: in Employment, Partnership and Business Law
 CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                 Poor Performance : How To
                     Prevent Problems
•   Recruitment Process – Take up references; Check qualifications; Proper interview selection

•   Contract of Employment – Detailed Job Description; Clear Reporting lines; Clear Targets

•   Probationary Period – End of Probationary Period Review; Extension if necessary; Training

•   Regular Appraisals – Address performance issues and objectives for the future, formalise any
    shortcomings; Training

•   Regular One to One Meetings with Line Manager

•   Document performance concerns

•   Offer training, mentoring

•   All good work is in vain if there is no PAPERTRAIL

NB: Always bear in mind the risk of a subject access request or general disclosure
    obligations during litigation: Do not write down anything you are not happy to
    be asked about when giving evidence at Tribunal; use neutral language.


                CM Murray LLP: in Employment, Partnership and Business Law
        CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                       How do you deal with
                 Performance Issues – The Formal
                      and Informal Approach
General Principles
•  Performance issues should be addressed promptly; poor performance does not tend to just get
   better by itself or go away

•   Common problem: managers do not raise their concerns, employee training is not given until it is
    too late and the perception then is the employee has to go

    Informal approach
      – you have a conversation with the employee in which you suggest there are performance
         issues which the employee needs to address; informal monitoring and follow up

    Formal approach
     – you raise issues at the end of probation meeting, in one to one meetings, at the appraisal
        and document these steps and offer training, if this fails you commence a performance
        management or disciplinary process.

Performance management:
•   takes time, management commitment and effort.
•   The aim is either:-
            - to have an effective employee performing at the appropriate standard; or
            - to part company, ideally without being exposed to a claim



                CM Murray LLP: in Employment, Partnership and Business Law
        CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
            The ACAS Code of Conduct
•   In cases of misconduct or poor performance, the employer should comply
    with the ACAS Code of Conduct, as a matter of best practice and the law
    on unfair dismissal.

•   The Code was introduced after the complicated statutory dismissal and
    disciplinary procedures (which were widely viewed as unworkable) were
    repealed in April 2009.

•   The Code sets out the basic requirements of fairness and is intended to
    provide practical guidance to employees and employers carrying out
    disciplinary procedures for misconduct or poor performance.

•   This Code is supplemented by non-statutory guidance. Employment
    tribunals are not required to take this guidance into account but it does
    give further assistance on best practice that employers should find
    helpful.

•   NB: No real clarifying case law as yet

            CM Murray LLP: in Employment, Partnership and Business Law
    CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                           The ACAS Code

• In essence, the Code retains the principles of the
  statutory procedures but without their rigidity and
  formality.

• The concepts of fairness and reasonableness are
  emphasised, as is the need to take steps promptly and
  without unreasonable delay.

• Both employees and employers are encouraged to
  behave in a manner consistent with the Code

• The parties are encouraged to seek an informal
  resolution, if possible, before starting a formal process.

             CM Murray LLP: in Employment, Partnership and Business Law
     CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                 Unfair Dismissal

In order to terminate lawfully

• the employer needs a fair reason (there are six
  categories including conduct and capability); and

• the employer must also follow a fair procedure before
  deciding whether to issue a disciplinary sanction e.g. a
  warning or whether to dismiss.

• The law of unfair dismissal is primarily concerned with
  whether the individual employer acted reasonably in all
  of the circumstances in dismissing or disciplining the
  employee.

            CM Murray LLP: Specialists in Employment and Partnership Law
           CM Murray LLP: Specialists in Employment and Partnership Law
                 Unfair Dismissal:
                 Conduct or Capability?

•   Capability refers to skill, aptitude, health, or any other physical or mental quality (this could
    cover dismissals relating to sickness and injury, in which case particular care is necessary);

•   Conduct refers to the employee’s behaviour (or misconduct). In order to warrant dismissal,
    misconduct must be extremely serious, or if not extremely serious repeated on more than one
    occasion.

•   Most cases of poor employee performance will be covered by capability




               CM Murray LLP: Specialists in Employment and Partnership Law
                     Unfair Dismissal:
                        Capability
• In capability cases, it is essential for the employer to
  show what was required of the employee, that the
  employee was informed of, or must have been aware of,
  those requirements, and the he or she fell short of them.

• Apart from the ACAS Code an employer should comply
  with any relevant company procedure (whether it is said
  to be contractual or not).

• You have to follow a fair process and go through a series
  of warnings, allowing time for improvement and offer
  training before you can move to termination.


             CM Murray LLP: in Employment, Partnership and Business Law
     CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                             Investigation
 An important principle established in the case law of unfair dismissal
  is that an employer should carry out a reasonable investigation, and
  this is reflected in the ACAS Code.
• The extent of the investigation will depend on the circumstances.
• The investigation may involve investigatory meetings with the
  employee under investigation or it may simply involve the collation
  of other evidence.
• In any event, an investigation should take place prior to any
  disciplinary action.
• An investigatory meeting should not result in disciplinary action
  without a disciplinary hearing.
• If paid suspension is necessary during the investigation, this should
  be as brief as possible and kept under review.
• The employer should make clear that this is not in itself a form of
  disciplinary action.


              CM Murray LLP: in Employment, Partnership and Business Law
      CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
              Investigation (cont’d)
• Detailed investigations are more likely to be required in
  circumstances of misconduct or suspected wrongdoing
  rather than capability issues, which may simply require a
  review of the employee’s appraisals and discussions
  with the line manager and the employee.

• In the event of a claim a tribunal will consider whether
  the employer’s actions in terms of what constitutes a
  reasonable investigation are within the “band of
  reasonable responses”.


             CM Murray LLP: in Employment, Partnership and Business Law
     CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                            Invitation to Performance
                                      Meeting
•   Following the results of the investigation, if a decision is made to start the performance
    management process, the Company needs to write to the employee, inviting them to a meeting to
    discuss the allegations/capability issues.

•   Employees have the right to make a reasonable request to be accompanied by a colleague or
    trade union official at the disciplinary meeting. What is reasonable will depend on the
    circumstances of the case.

•   The letter should set out the reason for the meeting being called and provide copies of any
    relevant evidence on which the employer intends to rely (including witness evidence).

•   It should also set out the possible consequences (including where appropriate the risk of dismissal
    or warnings).

•   The notification should set out the time and place of the disciplinary hearing

•   The meeting should be held without unreasonable delay whilst ensuring that the employee had
    reasonable time to prepare for their case.

•   It is a basic principle of fairness that a decision whether to dismiss or take other disciplinary action
    should not be taken without a disciplinary hearing or meeting.




                CM Murray LLP: in Employment, Partnership and Business Law
        CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                 Performance meeting
At the meeting, the employer should:

• Explain the allegations and go through the evidence (many are of
  the view that this is not strictly necessary from an unfair dismissal
  perspective, but best practice suggests that this should be done);

• Allow the employee to set out their case and answer the allegations;

• Allow the employee a reasonable opportunity to ask questions,
  present evidence, call relevant witnesses and raise points about any
  information provided by the witnesses.




              CM Murray LLP: in Employment, Partnership and Business Law
      CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
              Possible Sanctions/Warnings
•   Following the hearing, the employer’s decision should be communicated to
    the employee without unreasonable delay.
•   If misconduct or poor performance the employer needs to determine the
    appropriate sanction and any necessary training requirements and
    monitoring, including necessary follow up action.
•   Written warnings should set out the nature of the misconduct or poor
    performance, the improvement required, and the timescale for
    improvement. They should also specify how long they will remain current
    and the consequences of further misconduct (or failure to improve) within
    that period.
•   Dismissal would usually only be appropriate if there has been a prior written
    warning and a final written warning.
•   Gross misconduct can justify dismissal for a first offence, but not without
    following a disciplinary procedure and only in extreme cases (e.g. where
    safety is an issue).

               CM Murray LLP: in Employment, Partnership and Business Law
       CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                       Right of Appeal
• After the meeting, the employer should write to the employee setting
  out their decision and providing the employee with a right of appeal.

• Any appeal from the employee should specify the grounds on which
  they are appealing. If they bring a tribunal claim without appealing,
  any compensation awarded may be reduced.

• The appeal should be heard without delay, ideally at an agreed time
  and place and should be conducted impartially by a manager who
  (where possible) has not previously been involved and who is more
  senior than the person who made the original decision.

• The employer should hold the appeal meeting within a reasonable
  time.



              CM Murray LLP: in Employment, Partnership and Business Law
      CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                        General Considerations
• The ACAS Code does not set out guidance on the length of
  warnings, it just require employers to state the period for which a
  warning will remain active.

• The non-statutory Acas guide gives guidance on the appropriate
  period. It states that warnings would normally be live only for a set
  period but does not rule out the possibility or an unlimited warning in
  appropriate cases, particularly where an employee had a history of
  allowing their conduct to lapse just after the expiry of warnings.

• Employers may breach the implied terms of mutual trust and
  confidence if warnings, especially final warnings, are used
  oppressively for relatively minor misconduct.



              CM Murray LLP: in Employment, Partnership and Business Law
      CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                       Potential Risks
•   Unfair or wrongful dismissal and potentially discrimination.

•   Tribunals will take the Code into account and increase an award by up to
    25% if an employer has unreasonably failed to comply with the Code
    (subject to the statutory cap in unfair dismissal claims) (and a decrease of
    up to 25% if the employee is at fault).

•   It is for the Tribunal to decide what increase or decrease would be just and
    equitable.

•   What is not clear is what will trigger a Tribunal awarding an uplift to a
    compensation award, e.g. will a technical breach suffice or does an
    employer need to flout the Code completely.

•   This means that there remains considerable uncertainty for employers and
    employees until case law has developed, and may make it difficult to advise
    on appropriate figures for the settlement of claims.

•   Consider Polkey reduction
               CM Murray LLP: in Employment, Partnership and Business Law
       CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                      Some Other Options
•   Follow the proper performance procedure – this will take months, risk is you may still
    not be able to terminate

•   Follow a limited procedure to have some paper trail in place to minimise your
    exposure to a claim

•   Move straight to termination – high risk

•   Offer a without prejudice compromise agreement with a financial settlement, consider
    stating that if agreement is not reached the performance process will commence

•   Consider other alternatives: Redeployment, Redundancy, additional monitoring?

•   Following the ACAS Code may not be appropriate in every misconduct or poor
    performance circumstance, e.g. key decision makers. However, it is best practice to
    follow some sort of procedure, as certain types of statutory claims do not have any
    length of service minimum requirement (e.g. discrimination claims) and the employer
    will be in a better position to defend such claims if they have followed an established
    process and have a papertrail on which to rely.

NB: The without prejudice label may not necessarily apply

                CM Murray LLP: in Employment, Partnership and Business Law
        CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
            Typical Practical Problems
The performance process is commenced; what are your options if:-
• Employee raises a grievance
   – General recommendation is to complete grievance first and then revert
     to disciplinary, but always depends

• Employee goes off on sick leave for stress
   – Request medical reports, consider home visits, if sickness continues
     consider any permanent health insurance issues, proceed with
     disciplinary process if appropriate

• Employee asserts discrimination, harassment, victimisation or
  whistleblowing issues
   – Suspend disciplinary process, investigate allegations, consider whether
     matter should be treated as a grievance, if no merit in allegations
     proceed with disciplinary process

             CM Murray LLP: in Employment, Partnership and Business Law
     CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                            Case Study 1
• Moaning Myrtle, who is 50 years’ old, has been a loyal and effective
  employee for some 10 years. A year ago, under direction of the
  parent company, new accounting and IT systems were introduced.

• Moaning Myrtle does not seem to be able to grasp the new IT
  systems. She has been sent on repeated training courses but is
  effectively unable to perform her role using these systems which are
  now mandatory. What do you do?




              CM Murray LLP: in Employment, Partnership and Business Law
      CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                 Some Considerations

A. Wait for her to retire (with the abolition of the default retirement age, could
   take a while, she's only 50)
B. Hope she leaves anyway
C. Ask the training company why they think she is not understanding the
   process; is there an underlying reason, medical or otherwise, if so, follow up
D. Put in place a performance management process with further training
E. Dismiss her under the terms of a compromise agreement
F. Start the performance management process and then try and do a deal


Risks:
•   MM goes on sick leave, she raises a grievance, disability discrimination, age
    discrimination, constructive dismissal




              CM Murray LLP: in Employment, Partnership and Business Law
      CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                            Case Study 2
• Smooth Simon was recently recruited as FD and came with glowing
  references. In fact his performance is pretty disappointing and he
  shows no interest in any level of detail which for his role is crucial.
  He has recently queried how the CEO's mobile phone expenses are
  allocated to client files.

• His probationary period (and the shorter notice period) expired 3
  months ago without any comment or follow up by the Company .
  The budget figures for the next financial quarter have been found to
  be hopelessly inaccurate; the CEO has hit the roof; what do you do?




              CM Murray LLP: in Employment, Partnership and Business Law
      CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                  Some Considerations
A.   Follow up the references and academic qualifications to see if they all
     stand up (hoping they won't and you can terminate for gross misconduct)

B.   Start a performance management process (shame that probationary period
     came and went)

C.   Take Simon to one side and tell him it's not working out he's not very good
     and needs to leave under the terms of a compromise agreement

D.   Commence a performance management process and look at discussing a
     severance deal with Simon

     Risks: Whistleblowing claim, constructive dismissal (one year’s
     service?)


               CM Murray LLP: in Employment, Partnership and Business Law
       CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law
                 Speaker Details
      If you have any questions, please do not hesitate to contact:

                      Bettina Bender, Partner
                          CM Murray LLP
                                 37th Floor
                             One Canada Square
                               Canary Wharf
                              London E14 5AA
                              United Kingdom




                         Phone: 00 44 (0)207 718 0090
                      Email: bettina.bender@cm-murray.com
                         Website: www.cm-murray.com
        CM Murray LLP: in Employment, Partnership and Business Law
CM Murray LLP: SpecialistsSpecialists in Employment and Partnership Immigration Law

								
To top