Room for improvement

Dealing with an employee’s poor performance is perhaps one of the most
familiar problems faced by an HR professional, and yet it is one that is notoriously
difficult to measure. How much time should you allow to show improvement? How
do you measure that improvement? And what of the question of the part-time
worker? Joanna Broadbent and Sam Whitaker provide some answers

Probationary period

Rebecca is a sales person for A Limited. She passed her probationary period,
but has not met her sales targets since. Can A Limited dismiss her immediately
for poor performance or will it have to follow a proper procedure?

JB comments:  If Rebecca has
been employed for less than a year, she will not be able to bring an unfair
dismissal complaint. A Limited may therefore decide to dismiss her immediately.
However, Rebecca could still bring a sex, race or disability discrimination
claim alleging other staff have been or would be treated more favourably. A
Limited could follow a fair procedure to minimise the risk of such a claim.

Where Rebecca has more than a year’s service, she has protection against
unfair dismissal. A Limited will need to show a permitted reason for the
dismissal (such as capability) and that it acted reasonably in dismissing her.

To show that it has acted reasonably, a proper procedure should be followed.
This means investigating the cause of the poor performance, warning Rebecca and
giving her a chance to improve. A Limited should ask Rebecca to attend a
meeting and tell her about the problems with her performance beforehand. If the
meeting may result in disciplinary action, a fellow employee or trade union
representative can accompany Rebecca, even if the union is not recognised.
Rebecca must have a chance to explain her performance, and A Limited must then
decide whether a warning is appropriate and if so at what level.

It will almost certainly be unfair to dismiss Rebecca without giving her a
formal warning. The warning should say what improvement is required, by when
and what will happen if she does not improve. A Limited should then consider
whether it can help her meet that standard, for example by providing extra
training or a more experienced employee to assist her.

As a practical point, it is important for employers to deal with poor
performance when it arises. It is obviously less risky to dismiss a poor
performer before he has a year’s service than afterwards, but dismissing
someone immediately before he reaches a year’s service is not risk free. If
such an employee is dismissed immediately, but would have attained a year’s
service if he had been given his statutory notice (one week), he will legally
be deemed to have a year’s service, and will therefore be able to bring an
unfair dismissal complaint.

Improvement time

Jason, a secretary, has been given a written warning about the accuracy and
speed of his work. His employer, B&C Co, has warned him that he may be
dismissed if his performance does not improve. It now wants to know how long it
has to wait for an improvement, and whether it can dismiss if the desired
improvement does not take place.

SW comments:  How long someone
should be given to improve depends on the circumstances, in particular how long
he is likely to take to show any improvement. For example, a secretary would
often be able to show an improvement within four to six weeks. In contrast, a
sales person might need a longer period to demonstrate improvement, as there is
likely to be a gap before improved performance is reflected in sales figures.

The cause of poor performance will also be relevant to what will be a
reasonable period. If illness or a lack of training is at the root of the
problem, a longer period may be needed. Other factors for B&C to bear in
mind will be Jason’s length of service, how long he has been aware of the
problems with his performance and the extent to which his performance falls
below the expected standards. If Jason does not improve within a reasonable
period, it will not be fair for B&C to simply dismiss him. It will still
need to follow a fair procedure, by investigating the cause of the problem, and
considering whether a further warning and period for improvement should be
given. In Jason’s case it will probably be appropriate for another
investigation and meeting to be held and a final written warning given. If
Jason does not improve then, dismissal may be appropriate, but a fair procedure
will again need to be followed. This will include having another meeting with
Jason to discuss the situation and giving him a chance to explain. B&C will
then have to consider whether there is suitable alternative employment that he
could be offered before taking a decision to dismiss.

Written warnings

One of D Limited’s employees, Paul, was given a final written warning and
three months to improve his performance, failing which he would be dismissed.
He made some improvement in those three months, so no further action was taken.
Two months later Paul’s performance is again poor. Can D Limited rely on the
earlier warnings?

SW comments:  Where a warning
for misconduct has expired, it will generally be unfair for an employer to take
it into account when deciding whether to dismiss the employee for further
misconduct. The position in capability dismissals is slightly different.

In Kraft Foods Ltd v Fox (1978, ICR 311) the EAT recognised that an employer
will not necessarily be acting unfairly just because one period for improvement
passes and a further period is given: "it may well be that the employer is
being over-generous; but being over-generous is not the same thing as being
unreasonable". It may therefore be fair for D Limited to rely on the
earlier warnings and dismiss Paul now. To increase the chances of such a
dismissal being fair, it would be sensible for employers to write to an
employee at the end of the initial improvement period, saying that dismissal
may still result if the improvement is not maintained. The period of time that
has elapsed since the original period expired will also be relevant to whether
an employer is acting fairly.


E Co has started action against Jessica because of poor performance. She
complains that the allegations are being made because she works part-time. She
says that Dina and Fred, full-time employees who do the same job, are poor
performers, but that they have not been subject to any disciplinary action.
What steps should E Co take as a result of these allegations and what are the risks

JB comments:  The Part Time
Worker (Prevention of Less Favourable Treatment) Regulations 2000 came into
force on 1 July 2000. Since then, part-time workers have had the right not to
be treated less favourably than comparable full-time staff just because of
their part-time status. If action is only being taken against Jessica because
she works part-time (and she can show that a similar full-time worker such as
Fred or Dina has not received that treatment), she can argue that she has been
subjected to less favourable treatment. If her tribunal claim succeeds,
unlimited compensation could be awarded.

To reduce the risk of a claim, E Co will need to investigate Jessica’s
complaints before taking any further action. In particular, it will need to look
into Fred and Dina’s performance and establish whether it is better than
Jessica’s. If it is, Jessica is not being treated less favourably, and E Co
will want to address its concerns with her performance. If Jessica’s
performance is no worse than anybody else’s, proceedings against her will have
to be dropped, or proceedings against the other employees started. As part of
the investigation, E Co should consider how it would demonstrate to an
employment tribunal that Jessica’s performance is worse than that of other
members of staff. Something more than a subjective assessment is likely to be
required, such as past performance appraisals and concrete examples of the
areas in which Jessica’s performance is below standard.

If action is continued, Jessica could try to argue she is being victimised
because of her allegation that she has received less favourable treatment as a
part time worker. To combat such an allegation, E Co will need to show that
proceedings for poor performance had already started before the allegations
were made, that it thoroughly investigated the allegations and that the
treatment given to Jessica is no different from that given to any other under
performing member of staff. Victimisation claims may be harder to defend if the
initial investigation showed that Dina and Fred were not performing adequately.

Sam Whitaker is an associate, and Joanna Broadbent a senior professional
support lawyer, at Freshfields Bruckhaus Deringer

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