Poor performance: Guide to help managers

Guidelines for dealing with poor performance

Under the Employment (Jersey) Law 2003, poor performance may be a fair reason for dismissing an employee. As in all dismissals, an employer must demonstrate that he not only had a fair reason to dismiss, but that the dismissal was reasonable and followed a fair procedure. This guideline outlines the appropriate procedures to be followed in cases concerning employee's performance.

The procedure to be used for issues of poor performance may not always be entirely straightforward. There are no specific rules on the subject, and so Tribunals tend to turn to a House of Lords ruling, which stated "In the case of incapability, the employer will normally not act reasonably unless he gives the employee fair warning and an opportunity to mend his ways and show that he can do his job."

Employees have a statutory right to be represented at any formal part of a disciplinary process.  Representation can be either by a work colleague, a union shop steward (if a Union is recognised in the workplace), or a full-time union officer even if that Union is not recognised by the employer.  The difference between someone accompanying an individual to a disciplinary meeting and actually representing them, is that the Representative has the right to speak on behalf of the employee, and not just attend in support.  Failure to allow such representation at any formal stage could result in an employee taking a claim to the Jersey Employment Tribunal for the infringement of a statutory right. An employer who denies an employee this right risks an award of 4 weeks salary being made against them. If the employee is subsequently dismissed, having been refused this statutory right, then an award of automatic unfair dismissal award could also be made.

The following guidelines will suggest how a fair procedure, based on best practice, can be implemented. A model procedure can be found elsewhere on this site.

Poor performance may include situations where an employee:

• is incapable of doing their job
• is capable but not contributing as required
• is persistently on short-term sickness absences
• is on long-term sickness absence

The suggested procedures differ for health-related performance and job-related performance, and so these two areas will be dealt with separately in the guideline.

Health-related Poor Performance

Please bear in mind the duty to make reasonable adjustments under the Disability Discrimination Regulations.

In situations where the employer has genuine evidence of unauthorised absence, this may be dealt with as a misconduct case and the relevant procedures should be followed. However, the employer should deal with the employee more sympathetically in cases where the employee is genuinely sick, whether this is short-term or long-term. In genuine cases of sickness, the employer should:

• consult the employee in order to allow them to clarify the situation, and to ensure that they are given due warning of any possibility of dismissal
• conduct a thorough investigation into the underlying medical problem and prognosis
• review the medical evidence fairly in relation to the reasonable business needs of the employer
• consider alternative employment where appropriate

Each of these points will now be considered in more detail.

Consultation with the employee

This should involve a discussion between the employer and the employee in question, preferably in the form of a meeting. This meeting should provide the employee with the opportunity to provide their own account of the situation. Should the situation result is dismissal, this type of consultation will be deemed important when deciding on whether the actions of the employer were reasonable. The discussion should include:

• the specific health matter
• a disability
• the effect of the health matter on the employee's performance
• the long-term prognosis
• the necessity of medical evidence to support the claim
• the stage at which dismissal may be considered should the problem persist

The consultation should be well documented for use in any subsequent meeting or in the event of an ultimate dismissal.

Medical evidence

The subjective opinion of the employee with regard to the prognosis or the duration of incapacity should not be relied on. Therefore, in any case of absence due to sickness a medical report can be requested. Such a report should outline the employee's state of health and the long-term prognosis. If the employer does not attempt to obtain a reliable medical report, and take into account the information therein, a subsequent dismissal is unlikely to be considered reasonable.   However please remember the employee does not have to provide personal information to you under the Data Protection legislation.

However, the employee's co-operation is needed in the obtaining of a medical report. For this reason it is extremely beneficial if the employee's written terms of employment include a term permitting the employer to insist on a medical examination by the employer's appointed doctor, as well requiring the employee to produce medical notes. If the written terms do not include this stipulation the employer has no right to demand a medical examination, and the employee may be entitled to resign and claim constructive dismissal. Even when the employer does have a contractual right to enforce a medical examination, this should be exercised reasonably.

In cases where the employee declines any such request, the employer should attempt to determine the cause of this lack of co-operation. If the employee cannot be persuaded to co-operate they should be advised in writing that a decision about the future is imminent, which may involve dismissal, and if necessary this decision will commence without reference to medical evidence.

Smaller employers may not have an appointed doctor. As a minimum, such employers should ask the employee to request that their own doctor provides a medical report. A model letter for this purpose can be found on

Reviewing the evidence and taking subsequent decisions

Once all reliable medical evidence has been obtained, a decision about the employee's future can be made. A decision to dismiss must take into consideration the following factors:

• the nature of the illness
• whether the illness is likely to recur
• do they have a disability
• the length of absences and intervals of good health (in the case of intermittent absences)
• how essential it is for the particular employee to do the work in question (e.g. if the employee plays a key role there may be a significant pressure to replace them)
• the impact of absences on colleagues
• the contractual period of sick pay entitlement (e.g. it may be deemed unreasonable if an employee is dismissed after 3 months when they are  contractually entitled to 6 months' sick pay)
• how viable it is, both practically and economically, to hire temporary staff to perform the employee's duties until they are able to return
• a thorough review of the employee's personal circumstances
• whether it has been made clear to the employee that a possible decision regarding dismissal is imminent
• any other relevant contractual provisions, such as Permanent Health Insurance

Consideration of alternative employment

Before a final decision of dismissal is made, the employer should consider whether an offer of alternative employment is viable. It may also be possible to alter the employee's hours to suit both parties' needs.

An employee may offer to work part-time or may be prepared to take on a less demanding job (possibly resulting in lower pay or lower status) upon return to work. If this is the case, the employer should encourage this as an alternative to dismissal and should not assume the employee would be unwilling to accept these alternatives.

Dismissal

In the event of a decision of dismissal on the grounds of ill health, the employer must be able to justify the outcome with regard to the factors listed above. In cases of persistent short-term absences, if no written warning is issued and the employee is subsequently dismissed, this is likely to be deemed unfair.

Summary in the case of ill-health capability

Finally, we can once again turn to UK case precedent to summarise what is expected of employers. In a landmark case (East Lindsey District Council v. Daubney) it was found that:

"If in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done......Only one thing is certain and that is that if the employee is not consulted and given an opportunity to state his case, an injustice may be done."

Job-related Poor Performance

The employer must first establish potential contributors to under-performance, in order to determine the reason for poor performance in each specific case. This should include a review of training and supervision, and consideration of whether an employee lacks motivation and, if so, why that might be the case.

A meeting between the employee and their line manager, in order to raise the issue of the employee's performance and to allow the employee to put forward their views on the cause of the problem, is an important stage in a fair procedure. This meeting is part of the consultation process and not an investigation (as is required in misconduct cases).

The steps outlined above may reveal that the cause of the poor performance is a lack of training or supervision, or that the employer is failing to motivate the employee, in which case it would not be appropriate to consider disciplinary procedures.

However, it may be that the employee is accountable for the poor performance, and in these cases the employer should proceed with disciplinary action (see JACS' model disciplinary procedure and guidelines). In these cases employees should be given a formal warning outlining:

• targets for improvement
• timescale for improvement
• the consequences of a failure to improve within the timescale
• the right to appeal the decision

Each of these points will now be considered in more detail.

Targets for improvement

These must be realistic and achievable, and so it may be beneficial to involve the employee in the formation of these targets. By involving the employee there is a lesser risk of a complaint of unfair dismissal in the event that they are dismissed as a result of failing to reach those targets.

Timescale for improvement

This will be dependent on the specific cases. In cases were the circumstances justify an immediate improvement, the warning should state:

"immediate and sustained improvement in performance is required".

In most cases, however, the employee should be given a longer timescale for improvement according to:

• the realistic timescale required in order for the employee to attain a higher level of performance, with training
• the length of time the employee has been in the specific job
• the overall length of employment
• whether the employee was aware of their under-performance
• the degree of poor performance

Consequences of a failure to improve

The warning should stipulate the consequences of any failure to meet targets within the timescale stated. In the case of a first written warning, the employee should be informed that a lack of improvement might result in a final written warning or possible dismissal. If an employee's performance improves significantly during a notice period of dismissal, this should be taken into consideration, as in the case of a subsequent claim for unfair dismissal, the Tribunal may take this into account.

The employee should be given advance warning of possible dismissal in the event of a failure to improve. This may be oral or written, although a written warning is preferable. If the employer neglects to advise the employee of this possibility it is likely that any subsequent dismissal will be found to have been procedurally unfair.

Right of appeal

The employee has a right to appeal against any disciplinary action, and should always be informed of this. Any dismissal for job-related poor performance is likely to be fair if you have:

• undertaken sufficient enquiries
• discussed the problems with the employee
• issued warnings
• monitored performance throughout the agreed timescale for improvement

Mar 2020