Poor Performance: The Formal Process

If there is any chance that the outcome will involve some kind of punitive sanction, for example suspension, loss of pay/bonus or dismissal, the process followed must be the formal one and, therefore, subject to the following statutory requirements. If you fail to observe any of the statutory minimum requirements of the formal process, a resultant dismissal will automatically be found to be unfair by an employment tribunal. While there are exceptions to the statutory minimum requirements, the circumstances when they would arise are uncommon and you should not depart from the statutory minimum without HR or legal advice. Your organization’s disciplinary or attendance procedures should match at least the minimum statutory requirements.

• Invite the employee to a formal meeting.

Under the statutory minimum procedure, the employee must be given written notice of the meeting, including:

• the date, time and location of the meeting
• details of the alleged inappropriate performance, conduct or attendance, with sufficient information for the employee to understand what they have done wrongly or have failed to do, and why this is not acceptable
• copies of any relevant documentation that may be produced as evidence of their inappropriate behavior

Under the statutory minimum procedure, the employee also has the right to request to be accompanied to the meeting by a colleague or a trade union representative. Such a request is very seldom refused and an employer would have to show strong grounds for refusal; for example, evidence that the colleague is likely to disrupt the proceedings. The employee’s request does not have to be in writing, and the colleague would normally be allowed paid time to attend the meeting. As well as the statutory right to be accompanied, employers should also consider allowing employees who have a disability or other needs to be supported by a companion.

Step Two: Hold the Formal Meeting

The process in the formal meeting will usually adhere to the following structure.

• Evidence

The chair of the meeting (who ideally should not have been involved in the investigating and gathering evidence stage) should welcome the participants and introduce them to each other. Next, the chair should outline the reason for calling the meeting by describing the alleged problem behavior. The chair will then invite you to present the evidence that has been collected. The employee (or their representative if they are accompanied by one) may challenge the evidence, including presenting their own, alternative evidence.

• Witnesses

If you have invited witnesses, they will be invited to present their evidence, and the employee or their representative may question them. The employee may also call witnesses to corroborate their own evidence, and you may question them. As witnesses will often be colleagues of the employee, their presence will undoubtedly be a traumatic experience so if it is possible, avoid calling them (for example, where the other evidence is not disputed by the employee, or is adequate to prove the case, or where written statements are sufficient). Be sensitive to the potential damage to future working relationships between the employee and the witnesses.

• The decision

Once both parties have had the opportunity to present their evidence and question the evidence of the other party, the chair should adjourn the meeting to consider what has been said and make their decision. In reaching their decision, the chair must take account of:

• the seriousness of the employee’s alleged behavior
• the quality of the evidence in support of the alleged behavior or in the employee’s defense
• the rules and standards applied in the organization
• the outcomes of any similar formal proceedings in the past (either within the same or other organizations)
• the employee’s prior behavior record

Possible outcomes should be in accordance with your organization’s procedures, but the decision might be to:

• do nothing (the evidence does not support the alleged problem behavior)
• give a verbal warning (with an expiry date when it will be removed from the employee’s records)
• give a written warning (with an expiry date when it will be removed from the employee’s records)
• impose sanctions such as loss of seniority, pay or bonus
• dismiss (in cases of repeated or gross misconduct)

Notes of the meeting must be kept, including the record of the outcome. The notes should be kept in the employee’s personnel file in accordance with the Data Protection Act 1998. [2] This means you should hold only information that is accurate, relevant and not excessive; you should not hold the information for longer than is necessary and you should ensure that the employee is given a copy if they request it.

Of course, the underlying purpose of the meeting is to agree how the problem behavior will be replaced with appropriate behavior. The development of a performance improvement and monitoring plan is therefore an integral part of addressing problem performance. However, it may be difficult to develop this plan in the environment of the formal meeting, as by the end of the meeting, you and the employee may be feeling weary, emotional and fragile. In these circumstances, it is perfectly acceptable to defer this part of the process and hold it later, perhaps within the next few days, but certainly no later than necessary.

Step Three: Appeals

Under the statutory minimum procedure, the employee will have the right of appeal against any decision reached.

The employee may appeal against the decision, within a period of time laid down in your internal procedures (often five working days), on the grounds that:

• new evidence has been discovered
• the finding or penalty imposed was unfair
• the procedure was not properly applied

An appeal should ideally be chaired by someone not involved in the original proceedings, in order to avoid bias, and should be heard as soon as possible after the original meeting. At the appeal meeting, the original decision will either be upheld, which means that it remains in place or overturned, which means that the original decision is set aside completely or is reduced. This is the final stage of the internal procedure; any further disputes would have to be referred to an employment tribunal.

Conclusion

Nobody enjoys carrying out formal action to address problem behavior. It is undoubtedly easier to catch problems early, before they develop into serious concerns and before the formal procedure is required. However, regardless of whether the procedure used is formal or informal, remembering that the aim is to improve behavior, leading to a more effective employee and, therefore, a more productive organization, will help managers to keep a positive perspective.