If employees aren’t working out, managers can be impatient to move them out of the organisation. How can HR strike a balance between supporting the needs of the business while managing potential legal and reputation risks, asks Ed Stacey?
From time to time, most HR professionals will have to provide some unpalatable advice to their employer. Sometimes this means they’re perceived as being too risk averse or seen as the “HR police” who are not supporting the business agenda.
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However, it is clearly a brave HR professional that lets the employer behave inappropriately or illegally towards its employees, given the longer-term risk for the business.
How can HR teams best walk the line between highlighting and managing appropriate employment risks on the one hand, and supporting the business agenda on the other?
Making life difficult
Recent reports suggest that employers are increasingly taking more aggressive steps in an effort to move on their employees who are not performing or are no longer required.
In many cases, this seems to be borne out of frustration that the business considers that the normal HR processes for performance management are too long and too employee friendly.
The employer is convinced that the employee will never work out and does not perceive the need to put them through a process (in which they may have to invest time) to tell them what they already know.
Some employers avoid the use of process and instead just making life difficult for an employee, in the hope that they will get the message and leave.
This is a risky approach given the potential for a constructive dismissal claim and the vast majority of HR professionals would seek to dissuade the employer from such actions.
Increasingly, HR teams are often left trying to defend their performance management processes, even though they have significant sympathy with the views of the business.
Fix it sooner rather than later
One way to tackle this is to address underperformance much sooner. It is a minority of cases where an underperformer is a long-serving employee that has seen their performance nosedive.
The vast majority of underperforming employees have never performed particularly well, they may be given the benefit of the doubt for an extended period after joining and by the time HR become involved, the business have already lost patience.
In a number of organisations that we work with, we have seen HR teams take on an increasingly proactive approach. They catch up with line managers on a monthly basis until it is clear that their new hires have landed well.
This allows any underperformance to be tackled almost immediately and before the business has become frustrated.
Fit for purpose
Another area in which HR teams can help themselves and their business is to consider whether or not their performance management processes remain fit for purpose.
Most are designed with the aim of “turning around” the underperformance and give the employee significant amounts of time to do this. However, while any performance management process cannot be a sham one, most processes can be rebalanced to help employers move far more quickly towards an exit.
We also find that having appropriate performance targets in place, coupled with timely feedback, usually speeds up any exit discussions whether formal or informal.
Another consideration that we still see being relatively infrequently used is the ability to exit employees within their first two years.
Few employers have a different performance management process for those with less than two years’ service and where underperformance occurs, will place them in the same process as someone with ten years’ service. In most cases, this is unlikely to be necessary.
Employees within their first two years’ service are unable to claim unfair dismissal and, as such, it is relatively risk free to exit underperforming employees with less than two years’ service.
Where employers take an approach of exiting employees without process where they have less than two years’ service, they will need to be cognisant of any protected characteristics that the employee may have to avoid risk of a discrimination claim.
However, with a clear policy in place that explains that no process will be used in instances of underperformance for those employees with less than two years’ service, this can be mitigated.
Protected conversations
For those employees with more than two years’ service, the ability to avoid process is more challenging.
However, many employers are looking to increase the use of protected conversations which allow the employer to raise the possibility of a termination without the risk of a claim.
This can work well in many cases, but where the employee says “no”, it can often make any subsequent performance management process more difficult, given that the employee knows there is an intent to exit them from the company.
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In summary, there are often proactive steps that HR professionals can undertake to ensure that they are helping the business deal with their underperformers.
Some employers may still look for a more aggressive approach, but the majority will appreciate the need to balance the longer-term risks of a claim or damage to their brand with their desire to remove someone from the business.
