Managing Performance (Capability)
This Managing Performance model policy is intended to provide an example to employers and employees of good practice. It is not intended to represent a statement of the law.
While this policy applies to all employers, irrespective of their size, JACS recognises that it is often difficult for small employers (i.e. those with a single manager/owner and a very small number of employees) to conform to all the recommendations below. In particular, such employers may find it impossible to hold a capability appeal using a different person to chair the appeal than the person who took investigated the grievance in the first place. Similarly, the size of an organisation may make it inevitable that the same person chairs a capability hearing despite having previously acted as the investigator in the matter. In the Employment Law the Tribunal is able to consider the size and administration resources of the organisation in determining whether the employer acted reasonably. Providing employers in small organisations make every effort to ensure fairness, despite the limitations of their resources, the Tribunal should take that into account.
Statutory Entitlement - Right to representation - Employees have the statutory right to be represented at any formal part of a capability investigation. This representative can be either a work colleague, union shop steward from within the organisation (if applicable) or a full-time union officer even if the company does not recognise that Union. The representative has the right to speak on behalf of the employee, state their case, and summarise the points made. However, the representative cannot answer questions on behalf of the employee.
MANAGING PERFORMANCE - (While this policy forms part of the terms of employment it is not contractually binding).
Why have a Managing Performance Policy? Good performance management ensures everyone in the organisation is aware of what the business is trying to achieve, what the role of each employee is in trying to achieve this, what skills and competences are needed for each role and if there are problems, how poor performance will be addressed. Even smaller companies can benefit from having a straight forward and simple performance management system. Recruiting and training employees is costly, therefore ensuring employees clearly know what is expected of them and the policy that will be followed if they under-perform should ensure employees are engaged and retained by the company.
Purpose of the Policy - The Company will at all times endeavour to ensure that Employees achieve and maintain a high standard of performance in their work. To this end it will ensure that standards are established, performance is monitored and that employees are given appropriate training and support to meet these standards. At all times the confidential nature of any problems should be maintained by both the employee and the employer. Records and minutes of all discussions and meetings must be made and retained in case of future claims.
How will the Policy Work? All managers who have responsibility to ensure that performance requirements are met should be trained to ensure consistency of treatment across the organisation. Newly appointed managers (either internal or external appointments) will need to be trained in the policy the organisation has developed. New managers need to understand the objectives of the team as well as the individuals within the team.
Employees should receive an appraisal (at least yearly) during which any objectives the employee is expected to meet is clearly set down and any competencies/behaviours required to meet these objectives. The objectives should be clear and SMART:
S pecific e.g. the outcome required;
M easurable e.g. how is it known when the objective has been met;
A chievable e.g. ensure the employee is able to meet the objective;
R elevant e.g. do these relate to the team/business;
T ime-bound e.g. when an objective needs to be achieved by.
In short the objectives must be clearly understood by the employee and the manager/business. Personal development needs should also be considered. When employees are recruited they are likely to have (at least some of) the skills required to successfully fulfil their role, but these will need to be developed and renewed if the employees are to reach their short and long term objectives. Records should be kept of both the meeting and the objectives set and employees should countersign and receive a copy of these. Meetings should be set to discuss work as it goes along rather than wait for the next appraisal when it is too late for the employee to meet the last 12 months objectives. If it is agreed that training needs to take place in order for the objectives to be met, the line manager should organize this.
What can be done if an employee underperforms? This is a difficult conversation that many managers would prefer not to have or they put it off until later. However, if despite regular reviews and support an employee's performance is not at the expected level, this difficult conversation needs to take place. It can beeither informal or formal as set out as below:
- Where a manager/supervisor first establishes that the performance of an employee is unacceptable, an informal discussion should be held with the employee to try to establish the reason. Should this discussion determine that the established standards are not reasonably attainable, the standards should be reviewed.
- Should the interview establish that the performance problems are related to the employee's personal life, any appropriate necessary counselling/support should be considered. However, if it becomes apparent that the poor performance constitutes misconduct, the disciplinary procedure will be invoked.
- If the poor performance results from a change in the standards required by the company, those standards will be explained to the employee and help/training will be offered to assist the employee to conform to the standards.
- Should the employee show no (or insufficient) improvement over the reasonable period agreed between the parties, a formal interview will be arranged - in writing, and offering the statutory right of representation as set out above - between the employee and their manager/supervisor. HR may also be present at such a meeting to ensure consistency in application of the policy across the organisation. The aims of this interview will be to:
Identify the clause(s) of the poor performance
To determine what, if any, remedial treatment (e.g. training, retraining, support, etc) can be given
Clearly explain the shortfall between actual performance and the required standard
Obtain the employee's commitment to reaching that standard
Set a reasonable period for the employee to reach the standard and agree on a monitoring system during that period (see 5 below), and
Confirm to the employee what the likely course of action will be if that standard is not met.
The outcome of this interview will be recorded in writing and a copy will be given to the employee.
5. During the monitoring period discussions will be held at regular intervals to identify what improvements have been made and to provide further advice or guidance as necessary. A record of such meetings will be kept and a copy will be given to the employee.
6. At the end of the review period a further formal interview will be held, at which time:
- If the required improvement has been made, the employee will be advised of this and encouraged to maintain the improvement.
- If some improvement has been made but the standard has not yet been met, the review period may be extended.
- If there has been no discernible improvement, it will be explained to the employee that they have failed to improve. Consideration will be given to whether there are alternative vacancies that the employee would be competent to fill. If there are the employee will be given the option of accepting such a vacancy (which maybe at a lower salary level) or being dismissed.
- If such vacancies are available, the employee will be given full details of such vacancies, in writing, before being required to make a decision.
- In the absence of suitable alternative work, the employee will be told that they are to be dismissed with notice or payment in lieu of notice. The employee will be invited to give their views on this before the final decision is taken.
- Dismissal will then be confirmed in writing.
- The employee should be offered the right appeal against the dismissal in writing, stating the reasons for lodging the appeal. When possible, the appeal should be heard be a more senior manager. The appeal must be made within 5 working days of the date of the confirmation in f. above.
Some things that can go wrong:
- A new manager has different standards and expectations to their predecessor. When this happens employees are often hard-pressed to understand why their performance is now under question when it was not before. Ensure that new managers understand the expectations of the business and are trained on the existing policy within the company and ensure that consistency of this policy is applied.
- Once the process has started, managers fail to provide the support they offered at the meeting, or do not hold the regular meetings they said they would. If this happens the employee may believe (wrongly) that they are improving, which is why the meetings are not taking place. At the end of the review period the employee is shockedthat they are now facing a formal warning or even dismissal.
- The employee goes off sick for a period of time. If this happens, once the employee returns to work, a meeting should be held to re-establish any revised timescales that maybe necessary.
- The company has changed policies or brought in new systems but has failed to communicate these sufficiently to all employees. As a consequence, employees are not aware of the impact these changes may have on their objectives or their performance.
Please note that the Social Security Minister has published a revised Code of Practice on Disciplinary and Grievance Procedures. A flowchart explaining disciplinary procedure is also available. Our guidelines provide further advice on dealing with poor performance associated with capability.
General Data Protection Regulation
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