What is poor performance at work?
Poor performance is essentially an allegation by your employer that your work is not up to scratch. You may be missing sales or other business targets set by your employer, or you could be making mistakes in your work. Capability is a potentially fair reason for dismissal. In order for a dismissal to be fair, however, your employer must also demonstrate that they have followed a fair procedure.
Before a formal disciplinary procedure gets underway, your employer should ideally address performance issues informally if possible, and such initial discussions would not usually appear on your disciplinary record. You may find that you are placed on a performance improvement plan.
The ACAS code of practice provides guidance for employers to ensure that performance issues are dealt with fairly at work, although your employer will often have their own specific policies (which should be no less than what is recommended by the ACAS code). Although the ACAS code is not legally binding, whether or not your employer abides by the ACAS code will be a factor which Employment Tribunals consider when determining whether a performance dismissal is fair. An employment tribunal can impose an uplift in damages you are awarded against your employer as a penalty for not following the Code.
Key elements of the ACAS code in relation to performance
1. Your employer should investigate your poor performance
Before taking disciplinary action, your employer must carry out any necessary investigations to establish the facts of the case and substantiate any poor performance allegations made against you. An investigation may include a review of your appraisal records or work monitoring. The investigation may even uncover that the underlying reason for your poor performance is in fact partly the fault of your employer (e.g. you have not received adequate training). In these circumstances, it may be that an action to terminate your employment could amount to unfair dismissal.
If there is an investigatory meeting, this should not in itself result in any disciplinary action.
2. You should be informed of what the problem is and notified of the disciplinary meeting
If it is decided that there is a disciplinary case to answer, you should be notified of this in writing, which should set out the nature of the poor performance and its possible consequences (such as being provided with a warning). You should also be provided with any appropriate evidence together with details of the time and venue of the disciplinary meeting and the right to be accompanied at the meeting by a work colleague, a trade union representitive or an official employed by a trade union. The right to be accompanied is provided where the disciplinary meeting could result in a formal warning being issued or some other disciplinary action being taken.
3. You should be given warnings about poor performance and an opportunity to improve
After a disciplinary meeting, your employer must consider whether disciplinary action is justified. If your performance is deemed to be unsatisfactory, it is usual that you be provided with a first written warning. The warning should set out the nature of the poor performance together with the improvement required and the timescale for such improvement. Your work should be properly reviewed and monitored during this time.
What is a reasonable timescale may depend upon the length of an employee's past service, the extent of the underperformance and the effect which the underperformance has on the business (i.e. their relationship with clients). It may be that your employer will link the timescale to a natural part of a business cycle, for example, an upcoming sales target or pending completion of a particular project.
You should also be informed of the consequences of further disciplinary action - which is likely to be a final written warning if you have been provided with a first written warning, or a dismissal if you are at the final written warning stage. Sometimes your employer will be within their rights to issue you with a final written warning straight away if your unsatisfactory performance is sufficiently serious. (i.e. it is had a serious impact upon the employers business).
4. You should be given the right to appeal
If you are not happy with your employer's disciplinary decision at any stage, you have the right to appeal and your employer should notify you of this in writing at the same time as notification of any disciplinary action. Your employer should notfify you of the time period for appealing and 5 working days is not uncommon. The ACAS code advises that your appeal should be dealt with as impartially as possible and ideally should be heard by a different manager than the one who dealt with the original disciplinary procedure. As with the initial disciplinary meeting, you have a statutory right to be accompanied at an appeal hearing, and which should be heard without undue delay.
Settlement agreements and grievances: alternatives to going through the performance improvement process
If you do not agree with the performance process, you can lodge a formal grievance setting out why you are not happy with the process and what you do not agree with, although ideally it is best to resolve issues on an informal basis first if you can. Alternatively, you could try and come to an agreement with your employer to leave employment on mutual terms under a settlement agreement. This is especially where you feel that whatever the outcome of the process, the employment relationship has broken down. This is a highly tactical position and not one that should be adopted if possible without you being aware of all your rights. It is very easy to say or do the wrong thing. Negotations should always be conducted on a "without prejudice basis".
If terms can be agreed, you will need to ensure a job reference will be provided by your employer and one that has no mention of the circumstances leading up to your departure. The terms of the settlement agreement will need to be carefully negotiated.
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