The question
I am a standalone HR Manager in medium-sized company and took over this year, after the previous HR Manager left.
A few months after I started, I was informed by senior management that a member of staff, who has been with us for six years, was to be performance-managed out of the business. I advised at that time that an informal performance review should be commenced, which it was.
There was no improvement and, as such, I then advised them to move to a formal process. Management decided to allow another five weeks to give him a further period of review. If he does not improve, it looks like he will be invited to attend a disciplinary before being dismissed.
We are due to hold a meeting with him to set objectives for the next four weeks, but he wants his manager to be present. The reason the manager has not been asked to the meeting is that they have just taken over management of this individual. It is the unit head who will hold this objectives-setting meeting instead.
The current problem that I have with the situation is that the member of staff wants his manager present, but the unit head is refusing his request. I have explained to the member of staff that this is not a disciplinary meeting so his line manager does not need to be present, although I know that they have the right to be.
I have explained to the senior managers about his desire to have his line manager present, but they will not allow this to happen.
I should explain that the unit head decided to manage this whole issue as, historically, he indirectly managed the member of staff and so feels that he should lead this performance management process.
I feel I am being batted between the employee and senior management, but that things are only likely to get worse. I should add that, although they understand that the whole process is risky, they are prepared to take the risk and will not go for a compromise agreement straight away.
What is the legal situation here and what should I do for the best?
The legal verdict
Esther Smith, a partner at Thomas Eggar
Although poor performance is potentially a fair reason to dismiss someone, you need to show that you followed a fair process before dismissing them. This will include holding meetings such as the one you describe in which the employee’s progress is monitored and discussed.
The employee has a statutory right to be accompanied by a trade union representative or a fellow employee at a ‘disciplinary hearing’. A disciplinary hearing for this purpose will include any meeting that is likely to result in disciplinary action being taken, including the issuing of a formal warning.
As you seem to have decided that there is a case to answer, have suggested improvements and presumably will be advising the employee at the meeting of the consequences of his failure to improve, the meeting will be viewed as a disciplinary hearing, enabling the employee to exercise his statutory right to be accompanied.
The employee can elect to be accompanied by his line manager provided the request is reasonable. What is reasonable will vary in different situations, but generally-speaking, in this instance, unless the presence of the line manager would prejudice matters, or it is practically unrealistic for the line manager to attend, it is likely that any refusal will result in the procedure being unfair.
Given that the employee has over a year’s service, he would be able to pursue a claim for unfair dismissal.
On an additional note, to avoid any arguments that a decision to dismiss was biased and thus unfair, the unit manager should not be involved in all stages of the process even if he would like to be. The ACAS code suggests that the person who carries out the investigation should not be the same person who conducts the disciplinary hearings and, therefore, it may be preferable to have someone else lead the meeting.
In reality, if you have advised your managers of the above risks and of the fair process that should be followed and they choose to ignore your recommendations, there is not really anything else that you can do.
It is certainly risky for your managers to act in this way, especially given that a Tribunal can increase any award for unfair dismissal by up to 25% if a fair procedure was not followed – and it is likely to be the case here if the employee is not permitted to be accompanied by his line manager.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Martin Brewer, a partner at Mills & Reeve
I am not sure why you say "the whole process is risky". It is perfectly appropriate and legally acceptable to performance-manage an underperforming employee and, if targets are not met, ultimately to dismiss them.
The process you have outlined, subject to seeing the detail, is in principle the one any reasonable employer should adopt:
- identify the performance issue
- discuss it and try to deal with it informally
- if there is no sufficient improvement, set reasonable targets over a reasonable period
- monitor and support the employee as appropriate
- warn that failure to meet the required standard may lead to dismissal.
If you follow this process, the dismissal will be justifiable provided that the targets you set are reasonably achievable and the time you give for improvement is also reasonable.
What constitutes ‘reasonable’ will depend on the failings, the seniority of the employee concerned, the importance of what he or she does to the health of the business and any damage being done to the business by their continued underperformance.
One last point, subject to what any policy may say about workers being accompanied by someone else, the statutory right is to be accompanied if there is a grievance or disciplinary hearing. The words ‘disciplinary hearing’ are defined to mean a hearing that could result in the administration of a formal warning, the taking of some other action or the confirmation of a warning/other action.
I do not think, therefore, that a meeting to set targets, monitor performance or even warn an employee counts as a hearing.
Martin Brewer is a partner at Mills & Reeve LLP.
One Response
It seems to me the outcome has been pre-determined
The questioner said that they had been "informed" that "a member of staff" was "to be performance-managed out of the business". This suggests that a decision has already been made that the employee will be departing. If the outcome has been predetermined before embarking on the performance management process there is a high risk that any resulting dismissal will be unfair.
The legal commentators are right in so far as they describe how to deal with an employee’s who’s performance is considered sub-standard.
You simply cannot decide in advance that someone will be dismissed becuase of poor performance – they must be given a chance to improve and only dismissed if there isn’t the desired improvement. If they (perhaps unexpectedly) improve their performance to a satisfactory level they cannot be dismissed for poor performance.