Simon Quantrill provided me with excellent representation in a High Court dispute with my employer
Basic points to bear in mind
It is up to your employer to decide what standard of performance it requires from its employees. If the standard is challenging but not impossible, it will be difficult for you as an employee to challenge it unless the standard is imposed unreasonably or unfairly on you.
Your employer, however, must be consistent in the way it performance manages you compared to other employees who carry out the same or similar duties.
Your employer has a right to insist that you perform well in all aspects of your role. The fact that you may be very good at one part of your role but are failing in another may mean your employer is entitled to performance manage you.
If your employer is seeking to change the scope of your work or the standards expected of you, in most cases your employer should give you time and opportunity to adapt to the new expectations. If necessary your employer should give you appropriate training.
Does your employer have a capability procedure?
Your employer may have a capability procedure which it will follow if it believes you are under performing. The procedure may be a separate standalone one or it may form part of your employer’s disciplinary procedure.
Your employer may not have a written capability procedure. This will not prevent it managing your performance but your employer must still follow a fair procedure.
Your first task is to find out and obtain a copy of the actual procedure your employer is following. You should look in your contract of employment and employee handbook (if you have one). If in doubt then you should ask your manager or someone from HR to confirm whether there is a capability procedure and ask for a copy.
You must then review it so you have an idea of the steps your employer should follow and over what time period. Tactically it helps to anticipate what your employer may do next, especially if you believe you are being unfairly criticised or put under pressure in relation to your performance at work.
What is the purpose of the capability procedure?
The purpose of a capability procedure is to allow your employer to deal with any concerns it may have about the performance of its employees. An employer is entitled to manage performance, provided it does so for a genuine reason. The procedure should not be used to bully or harass or put the employee under unjustified pressure or stress.
The procedure should allow your employer to consider ways in which it can help you improve your performance and work together with you to ensure that your performance improves to an acceptable standard.
Part of the procedure will normally be for your employer to consider what additional assistance, training or support may be needed to help you improve and maintain your performance to the required standards. You should think about what you may need to help improve your performance at the outset and throughout the capability process.
What steps should a good capability procedure normally include?
Many employers try to resolve issues of poor performance informally before instigating a formal performance management procedure. This will normally involve a meeting between you and your line manager as part of your line manager’s day to day management of you. It is only if your performance is still not at the standard required that your employer should commence formal management of your performance through a capability procedure.
If your employer decides to follow a formal capability procedure it should investigate the circumstances surrounding your under performance.
This may involve your employer reviewing your personnel file, appraisals, gathering any relevant documents, monitoring your work and, if appropriate, speaking with you. Your employer should at this stage be trying to understand why you are under performing.
Your employer should allow you to comment on your performance and the information it has gathered as part of its investigation. You may feel there are reasons why your performance is not at the standard required. You should make your employer aware of those reasons. It may be that you feel that the targets set by your employer are unrealistic or that you have not received suitable training or support.
You may not have been told of the standards you are alleged not to have met. It may be that you feel that you have been bullied or harassed. You may have issues with your personal life or be unwell. Do not miss out on the opportunity to make your employer aware of any relevant issues.
Your employer may decide not to carry on with the capability procedure at all but to provide help and support to address your issues.
If your employer decides to put you through its capability procedure it should write to you to invite you to a meeting. In the letter your employer should set out the concerns it has regarding your performance, the reasons for those concerns and the likely outcome if, following its meeting with you, it decides your performance is unsatisfactory. Your employer should include with the letter a copy of any relevant documents that it will use or refer to during the meeting.
The letter should include details of the meeting, including the date, time and location. It should also set out who will be present at the meeting. Your employer should also give you the opportunity to be accompanied by a colleague or trade union representative at the meeting.
If your employer has a capability procedure this will normally set out who is to conduct the capability meeting. If there is no written capability procedure, or it does not state who will conduct the meeting, your employer should choose the most appropriate person, normally your line manager. It is quite common for someone from HR to attend as well.
At the meeting your employer should tell you why it feels that you are under performing and allow you the opportunity to comment. The purpose of the meeting should be to:
• clarify the required standards and why your employer feels that you have not met them
• establish the likely reasons for your poor performance
• identify what can be done to assist you in improving your performance such as additional training or supervision
• set agreed targets for improvement; and
• set a timescale for review.
Following the meeting your employer should write to you confirming what was discussed at the meeting and inform you of the outcome.
If your employer decides that you are under performing it may decide to give you a formal warning.
The warning will usually set out:
• the areas in which your performance has fallen below the required standards
• the targets that you are expected to meet as part of the capability procedure
• the timescales for meeting the targets
• any additional training or supervision that will be given as part of the procedure
• when and how you will be reviewed; and
• what will happen if you do not meet the required standards within the required timescales.
Your performance should be regularly monitored during your review period. If your employer is satisfied that your performance has improved sufficiently then it will normally stop the capability procedure.
If you are still not performing to the required standard you may be invited to attend one or more further capability meetings. These should follow the same format as in step 3 above.
Your employer should use the capability procedure to get your work performance up to the required standard. If your performance does not improve sufficiently then your employer, after appropriate warnings, may dismiss you.
If your employer is happy that your performance has improved you should be informed of this and the formal procedure comes to an end, subject perhaps to periodic future reviews to check that your performance has not slipped backwards.
You can reasonably expect at least two formal warnings before your employer can consider dismissing you. That said, if your performance is seriously below the required standard your employer may jump to your dismissal more quickly – much depends on your job, grade, level of experience and the reasons for the under performance.
Your employer should tell you when you are being given a last and final warning. You must be told that if your performance does not improve sufficiently then you will be dismissed. Provided your employer has followed a fair procedure then your dismissal on the grounds of capability may well be fair.
If you are dismissed your employer should give you the right to appeal against the decision. At the appeal you should have an opportunity to say why you think you should not have been dismissed.
You should focus on the reasons why you feel your performance was satisfactory or that the procedure followed by your employer was not fair.
If your employer has not followed a fair procedure or its decision to dismiss you was unreasonable you may have been unfairly dismissed.
For more details about unfair dismissal and who can bring a claim please see our Briefing Note When will your dismissal be unfair?
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