Liz Cullen gets legal guidance this week from Helen Badger, employment law expert at Browne Jacobson and Martin Brewer, a Partner with the employment team of Mills & Reeve on managing a verbal intention to resign that never materialises.
The question:
We have an underperforming employee who, back in February, informed us in writing of her intention to resign once she found a new role.
Six months on we are still waiting, to pursue a capability route seems unfair as she is actively seeking alternative employment and already has one warning on file, but I’m starting to feel that it may be our only option. Can anybody be more creative? She’s a nice girl, just desperately unsuited to the role and I have no desire to make life any harder for her as she is clearly miserable in her job.
The hard-nosed HR side of me wants to push on with this but it seems cruel. I would be very grateful for any advice.
The answers:
Helen Badger, employment law expert, Browne Jacobson
Unfortunately there are not many options open to you other than to undergo capability proceedings.
If it hasn’t been done already, then the first step is to meet with this employee to ask her of her intentions. Given that she has confirmed in writing that she plans to leave, it is reasonable for you to seek clarification.
The most delicate way to handle the discussion is probably to explain that concerns continue to be expressed about her performance and that you are under pressure to commence a formal performance management process. You could explain that you have resisted this pressure up until now, as you are aware she was looking for another job and you did not want to jeopardise this.
However, you can only resist this pressure for a limited time and, if there are no developments on the job search in a set period of time (say 1 month) then you will have to start the process. This employee should realise the impact this could have on any reference you provide and prompt her into action. If, however, she does not, then this should be spelled out to her.
If nothing develops within the set time period then you probably have little option other than to start capability proceedings. If you do not start proceedings there is a danger in some such circumstances that employees continue under performing at work under the misapprehension that you will do nothing about it.
Helen can be contacted at: hbadger@brownejacobson.com
Martin Brewer, is a Partner with the employment team of Mills & Reeve
The right thing to do for the organisation and other members of staff is to deal with the capability issue (and part of that will be the employee’s own contention that she will resign in due course).
This is not being hard nosed. The purpose of performance management is to see whether you can turn around the poor performing employee so should be undertaken positively.
The key things to remember are: set realistic targets for improvement. This means targets which are achievable with proper performance over a reasonable period of time.
Set increasing targets if appropriate over a period of time. In other words make progress targets incremental, don’t expect the employee to be perfect immediately. Offer reasonable support.
The targets, time periods and support will depend upon the work type, size of organisation, available resources etc. The key is reasonableness.
Finally you need to ensure that the employee is aware of the consequences of failure and at some point, if you get to the stage of wanting to dismiss the employee, you need to follow the statutory dismissal procedure.
Martin can be contacted at: martin.brewer@mills-reeve.com
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