The option to use legal measures to discipline poorly performing staff is open to employers but it is a route many would rather not travel.
So says the recent Tough Love survey, carried out by Employers' Law's sister title Personnel Today, in association with HR consultancy Chiumento. It found that almost half (46%) of the 800 respondents said they feel the law works against employers when dealing with poor performers.
The findings reflect a concern among a sizeable number of HR managers that the statutory requirements for disciplinary, dismissal and grievance procedures can put an unfair administrative burden on managers and prevent organisations taking the swift action they feel is needed.
"Quite rightly, there is protection for employees, and the employer has to build up a body of evidence if an employee is to be disciplined or dismissed," says Doug Crawford, head of engagement at Chiumento.
"But this procedure can sometimes seem very drawn out," he adds.
Managers and HR staff, already under pressure from a heavy workload, can often feel constrained by the formal processes they are required to go through, he says.
"It's time they would rather spend on other things. It requires discipline and, when faced with it, they often don't have the appetite."
The statutory requirements for disciplinary, dismissal and grievance procedures form part of the Employment Act 2002 (Dispute Resolution)Regulations, which came into force on 1 October 2004, replacing by law codes of practice laid down by dispute resolution body Acas.
"They oblige employers to take three standard steps when disciplining employees," explains Chris Davies, a professional support lawyer at law firm Halliwells.
Employees called to a meeting to discuss their poor performance must be given a full written explanation of why they have been called, and given sufficient time to prepare for the hearing.
At the hearing, the employer must lay out their case and give the employee adequate opportunity to defend themselves. There is also an onus on the employer to remind the employee that they can be accompanied by a work colleague or union representative.
Once the employee has been advised of the outcome, they have the right to appeal, if possible to someone more senior.
Beyond this, employers have a duty to support the employee in improving in the areas where they are deeme