


I need legal support managing poor performance in the workplace


The importance of seeking legal advice as early as possible

It is important when considering poor performance that you identify the problem and come up with a realistic action plan. Issues typically range from an inability to perform the basic functions of the role, problems in working relationships with other colleagues or clients, poor attitude or a lack of productivity (or all of the above!).

If a performance management process is handled incorrectly it can do more harm than good; if not addressed at all, it can be a major drain on the performance of the business. Claims may arise out of any stage of the process and it is not uncommon for an employee to allege bullying or go off sick with stress. If you get it wrong, you could face expensive and disruptive claims for unfair dismissal, discrimination, and / or breach of contract.

Given the complexity and risks associated with managing performance it is prudent to seek legal advice as early as possible.

How we can help

Tozers’ specialist team of employment lawyers have many years of experience and we know the best way of managing poor performance without having to face a claim as a result.

By engaging with you early on, we can provide practical and robust advice at each stage of the performance management process to help you resolve the problem. If the worst comes to the worst and you do face a claim, you can at least be confident that you have followed the correct process, minimising the risk of losing a Tribunal claim.

Simple steps taken early enough can be hugely helpful. The first step towards managing performance effectively is to set out the requirements of the role and the expected performance level. Doing this at the outset may avoid problems altogether; where this isn’t the case, it provides an essential starting point on which to base the initial performance management conversation.

Before commencing any formal process, you should normally try to deal with poor performance informally. Sharing examples of good practice, setting clear expectations and then discussing what support may be necessary can often lead to positive results.

Where this informal approach doesn’t have the desired effect or where poor performance is more serious, a formal process may be appropriate. Taking timely legal advice can really pay dividends; we can walk you through what you need to do and how to avoid common pitfalls.

Navigating the formal process

Communication is key. It is vital to understand all the factors influencing performance, which will help you to determine if the issue is one of misconduct or lack of capability (e.g. due to sickness or incompetence). Consider taking the following steps:

Stage 1

Is the problem due to conduct or capability?

If conduct, consider appraisals or informal disciplinary action, moving to formal disciplinary action under your disciplinary procedure if there is no improvement.

If capability, move to stage 2.

Stage 2

Identify the issue. Is it a competence issue (in which case consider further training and proceed through your capability procedure giving warnings and periods of time to improve) or a sickness issue? If sickness, move to stage 3.

Stage 3

Is there an underlying medical condition?

If in doubt, review your personnel file for records of previous sickness absences, meet with the employee and seek professional medical advice (usually from occupational health).

If you think there is an underlying medical condition, clearly identify (taking suitable medical advice) what exactly it is. Then move to stage 4.

If there is no underlying condition but there are persistent short-term absences, proceed through your capability or absence procedure giving warnings and periods of time to improve.

Stage 4

Is the employee disabled? Again, you are likely to need medical evidence to establish this.

If so, consider reasonable adjustments and discuss these with the employee. Allow time for the employee to improve.

If reasonable adjustments don’t resolve the issue, move to stage 5.

Stage 5

Can you safely dismiss? Having followed your capability procedure and made any required reasonable adjustments, if there are still serious issues consider dismissal on notice. Consider the employee’s prospects of recovery and whether another position may be available. Consider the impact of any permanent health insurance scheme and whether it is appropriate to wait for contractual sick pay to run out before dismissing.

What can happen if performance management is handled incorrectly

If you make mistakes, you could face claims for unfair dismissal, breach of contract and/or disability discrimination. Compensation for discrimination is uncapped. Defending claims (even if you are successful) is an expensive and time-consuming business; far better to avoid them in the first place. Investing in proper legal advice at an early stage is often money well spent.

Why Tozers?

We work predominantly with employers and understand the pressures businesses are subject to. We give practical and robust advice in plain English and tailor the advice to fit the type of business you are and what you want to achieve. We value long-term relationships with businesses (most of our clients have been with us for many years) and, if the worst comes to the worst, we have an excellent record of success in defending Tribunal claims.