Poor performance

The knock-on effects of someone not doing their job properly can be
wide-ranging and poor performers may cover up their shortcomings by blaming and
bullying others. Poor performance should be investigated thoroughly and dealt
with, by Linda Goldman and Joan Lewis

Poor performance may be responsible for a hidden item in the budget of many
employers. At management levels, the poor performer may cover up defects by
blaming and possibly bullying others. The causes of poor performance should be
investigated, targets set and training offered. Increased stress levels are
reported from those who work with or cover up for those who are not carrying
out their job properly. At the professional level, retraining should be considered.

Capability for doing the job

Capability is an issue that has disciplinary connotations. The Employment
Rights Act 1996 sets out a list of potentially fair reasons for dismissal
including capability for carrying out the work the employee was employed to do.
An employer may have sufficient reason to dismiss someone who is not performing
to the standard required of the job but must use fair procedures including a
full investigation of the circumstances and effect of the poor performance. It
is a relatively recent aspect of dealing with capability issues that the
employee’s health will be considered as a factor, bringing the occupational
health team into enquiries.

The employer will need to know if there is an underlying health reason for
an employee’s persistent mistakes, attempts to delegate tasks within his/her
job description, blaming others for problems in which he/she is directly
implicated and inexplicable short-term absences at the time when errors are
about to be discovered.

The misuse of workplace stress as an underlying excuse for poor performance
is likely to be curtailed by proper application of the guidelines set out in
the recent Court of Appeal decision in a series of cases (Kigass and others)
brought by employees claiming compensation for stress-related illness. Proper
procedures for monitoring stress and rapid investigation of apparent problems
are increasingly being devised by OH personnel to limit the scope of potential
litigation.

There is anecdotal evidence that there is a pyramid of poor performance in
which health problems are caused to others by managers manifesting limited or
deteriorating performance. This may feature in situations where a manager
cannot or will not keep up with new training or modern trends and expects to delegate
tasks which he/she is incapable of performing and covers those deficiencies by
relying on years of seniority.

The perceived effect is that of bullying junior members of staff to carry
out work that may be within their technological capacity, but for which they
lack seniority. The downward spiral is almost always along the health route,
but may also reflect in a high turnover of junior staff.

Professional failures

OH professionals are involved in health aspects of poor performance but are
not immune from suffering capability defects. The continuing requirement for
post-qualification education is a great help in keeping up to date with current
requirements and assisting with the problems of isolation often experienced by
those working in smaller organisations.

It may be difficult to carry out a self-assessment on capability, and
problems of poor performance may be under-identified because many OH teams are
very small indeed. In the general medical world, the Royal College of
Obstetricians and Gynaecologists has published an action plan, Further Training
for Doctors in Difficulty, for retraining gynaecologists who are currently on
suspension or on "garden leave" associated with performance
inquiries. (Visit www.rcog. org.uk for further information.) The skeleton of
the plan could be useful as a scheme for dealing with OH practitioners who need
help with the way forward in these challenging times.

Measuring the performance of members of the occupational health team,
especially if there is only one member, is a human resource management issue
which may well need special protocols and a particular eye on the specific job
description of the individual(s) concerned. The OH role is changing and
developing so that only part of it now is dealing with fitness of the general
workforce to carry out the requirements of jobs within the organisation. There
is the perpetual ‘battle’ with GPs signing people off work, now reflected in
the Government’s new Fitness Desk Aid for GPs which it is generally hoped will
resolve the problem of the non-medical diagnosis. These are useful criteria for
self-assessment for the poorly performing OH practitioner.

Poor performance may require a period of re-thinking as well as retraining.
The current GP guidelines state that doctors " …should always bear in
mind that a patient may not be well served in the longer term by medical advice
to refrain from work, if more appropriate clinical management would allow them
to stay in work or return to work".

The knock-on effect

Regular appraisals will indicate whether employees are fulfilling the
requirements of their job description, but a wider approach is needed if the
appraiser is the one who is not performing properly. The human resource
department will take a global approach where there are difficult interpersonal
relationships resulting in ill-health or absenteeism in the subordinates or
co-workers with any pivotal figure whose poor performance is masked by the
effects that it causes.

Any investigation into poor performance should be based on a reasonable
suspicion that there is a problem so as to avoid what may be perceived as a
witch-hunt. Further, it should be borne in mind that there will always be an
individual with whom others cannot or will not work. Provided there are no
underlying discrimination issues, there may be some other substantial reason
(as covered in the Employment Rights Act 1996) for dismissal since good
employee relations are crucial to the contract of employment. Whatever the
reason for poor performance, it should be uncovered and steps taken to rectify
matters. Unless there has been a catastrophic failure to perform amounting to
gross misconduct, it is the failure to improve under appropriate supervision
that can give grounds for dismissal.

No excuses

An employee cannot claim total lack of knowledge of matters that any
reasonable employee can be expected to have. Thus, it will never be an excuse
for an employee to claim ignorance of discrimination issues or to behave in
such a way as could be construed as discriminatory.

Failure to perform to the required standard through negligence, laziness or
insubordination is unlikely to amount to lack of capability, but is more likely
to be misconduct.

Although there are some matters that are the employment law equivalent of parking
on double lines, all responsible employers will follow correct procedures to
establish whether there is a problem and if it should be dealt with by
discipline or education.

Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head
of training and education for ACT Associates & Virtual Personnel. Joan
Lewis is the senior consultant and director of ACT Associates and Virtual
Personnel, employment law and advisory service consultancies.

Lawline

The Employment Rights Act 1996
defines capability under section 98(3)(a) as being "assessed by reference
to skill, aptitude, health or any other physical or mental quality". The
capability must relate to the work the employee was employed to do: section
98(2)(a).

Some characteristics identified as lack of capability are:

– inflexibility and lack of adaptability – Abernethy v Mott,
Hay and Anderson, 1974, ICR 323, CA.

– abrasive and difficult personality disrupting the standards
of co-workers – Bristow v ILEA, 1979, cited in Unfair Dismissal, 2nd Ed, IDS
Handbook.

Case round-up

Dismissed as incapable
A J Dunning & Sons (Shopfitters) Ltd v Jacomb, 1973, ICR 448 NIRC

J was employed as a contract manager for shopfitters. He was
competent and experienced. He had "detailed knowledge of building law and
was loyal, conscientious and meticulous". However, he was argumentative
with clients and unable to compromise with them on their particular
requirements. Some of the clients refused to deal with him. He was dismissed on
the grounds of incapability under the heading "mental quality".
Although skilled in the physical attributes of the job, his dismissal was
upheld as fair as he lacked the necessary aptitude and mental quality for
performing the full range of roles required of a manager. The problem with his
intransigent attitude was such that a warning would have been pointless.

Dismissed following a single act
of negligence
Alidair Ltd v Taylor, 1978, ICR 445, CA

A was a pilot who crashed his plane on landing it. He was
dismissed on the grounds of incapability of carrying out the job he was
employed to do since the consequences of the single act of negligence were
catastrophic. According to Lord Denning, "Whenever a man is dismissed for
incapacity or incompetence it is sufficient that the employer honestly believes
on reasonable grounds that the man is incapable or incompetent. It is not
necessary for the employer to prove that he is in fact incapable or
incompetent." Two elements must be satisfied:

– is there an genuine belief by the employer in the employee’s
lack of competence or aptitude for the job?

– are there reasonable grounds for such a belief?

The tribunal must consider whether the employer formed its view
on the basis of adequate evidence and must not substitute its own view of the employee’s
competence. Thus, it is up to the employer to produce adequate evidence to
justify both the dismissal and to show that it was within a range of reasonable
responses to the offence committed. In this case, although there was only one
offence committed and the pilot’s previous employment history was unblemished,
there were sufficient grounds for the employer to consider him incompetent to
carry out the job he was employed to do. As a question of procedure,  A was fully informed of the charges against
him and he was given full opportunities to explain his conduct. One spectacular
act of incompetence was sufficient grounds for a fair dismissal.

A case of constructive dismissal
Dutton & Clark Ltd v Daly, 1985, IRLR 363

D resigned and claimed constructive dismissal after he had been
the victim of an attack by a fellow employee. The employer is under a duty of
care under the criminal law (Health and Safety at Work Act 1974, s.2) and a
common law to ensure that the employee is offered a safe place and system of
work. Any bullying case carries the potential for a claim for damages by the
victim in addition to compensation for violation of employment rights. The
bully is most likely to be carrying out an act or acts of gross misconduct, but
may be doing so to cover up his/her own incompetence. The employer is required
to maintain and monitor a safe workplace to ensure that the employee is able to
perform his/her contractual duties without risk to health.

Liability in stress cases
Sutherland (Chairman of the Governors of St Thomas Becket RC High
School) v Hatton, Somerset County Council v Barber, Sandwell Metropolitan
Council v Jones and Baker Refractories Ltd v Bishop, 2002, IRLR 263

The main factors the courts will consider in determining
liability in "stress" cases are:

– there are no special control mechanisms for
"stress" – ordinary employer liability applies

– the employer will be liable if the harm was reasonably
foreseeable

– subject to causation, there must be an identifiable injury to
health(ie, a diagnosed illness)

– causation must be established: any diagnosed illness must be
attributable to stress at work

– the court will look at what the employer knew or ought to
have known about the alleged stress factors

– foreseeability depends on what the employer knows or ought to
have known about the individual. It may be harder to foresee mental disorders
than physical, unless other factors pertain, such as known vulnerability

– the test applies whatever the occupation

– risk assessments should cover objective and subjective
criteria (that is covering the perspective of employer and employee)

– a full risk assessment will take note of external factors
that might increase the employee’s vulnerability to stress, including domestic
and social factors so that these may be excluded from litigation

– employers who take steps to reduce stress and offer
confidential advice services, such as occupational health and counselling
services to employees, are less likely to be found to be in breach of the duty
of care.

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