Performance reviews

An employee’s poor performance may be something that is addressed at a routine performance review. It is an employer’s right to flag an employee’s poor performance and to provide the employee with written warnings and opportunities to improve. This can be sensitive ground to navigate, and sometimes professional advice should be sought. Peacock & Co can provide legal advice on all aspects of employee performance and steps to improve performance in the workplace

A Performance Improvement Plan, also known as PIP, is a formal document the employer provides to the employee explaining the areas where an employee needs to improve. This should give clear guidance to help the employee improve and achieve their expected goals, as well as providing a timeline for reaching those goals. It should also highlight the potential and possible disciplinary consequences should the employee not meet those goals. This will invariably be set out in the employer’s Code of Conduct.

If you are looking to dismiss someone for poor performance, you need to ensure certain conditions have been met. The Employment Act 1996 lists five reasons an employee may dismissed, although performance will usually come under capability or conduct, depending on the particular set of circumstances. The five reasons are:

1. Conduct
2. Capability
3. Redundancy
4. Some Other Substantial Reason (SOSR)
5. Statutory Illegality or breach of a statutory restriction.

Performance should be measured against standards known and understood by the employee and the employer, based on clear metrics or key performance indicators (KPIs) expected for the role.

If you wish to dismiss an employee for poor performance, as an employer you must comply with the legal requirements that the process is handled fairly. The employee must be provided with sufficient reasonable opportunities to improve the performance, which may include:

• Ensuring the employee is aware of their poor performance (either informally or through a Performance Improvement Plan (PIP);
• Ensure the employee knows the outcome and what is expected from them;
• Provide the employee with additional training, if needed;
• Providing the employee with enough time to improve before any disciplinary action is taking against them. This should be detailed in the employer’s performance management process.

When the above isn’t met, you may have a case for unfair dismissal.

For a performance review to be classed as good it must be designed to exhibit a fair and accurate reflection of the employee’s work and must be achievement orientated. This will encourage the employee to consider their work achievements and constructively develop, allowing them to grow both professionally and personally.

A performance review should be carried out routinely every six to 12 months, or at any other point if there are concerns about an employee’s performance or conduct at work. Where there are ongoing concerns and the process has commenced, and subject to the nature of the employee’s role, these could be measured more regularly, be it weekly, monthly or quarterly.