What is the position in respect of alleged under performance at work? Employees will want to know to what extent underperformance may place their employment in jeopardy. Similarly they will want to know what responsibility their employer has towards them in this regard. That is can the employer discipline or, instead, should he provide support, guidance and training?
Employers want to know how they can get the best out of their staff. After all they have paid for a job to be done and they expect that job to be done. What should they do? Discipline or help?
The answers to these questions often lie in carefully drafted and applied performance review procedures. Employment Tribunals will very rarely interfere with or question an employer's commercial judgment and his opinion as to what his business requires from its staff. Rather Tribunals want to see that issues in respect of performance are managed properly. A performance review procedure usually requires that that the employer meets with the employee to discuss the problem, explores what, if any, assistance can reasonably be provided, provides clear objectives to be met by a specific date and sets a date to review performance. If, at the review, performance remains unsatisfactory the employer should set further targets and another review date. Eventually, provided this process is followed, the employer will often be entitled to dismiss.
A further matter that both employers and employees should be aware of is that a Tribunal will not regard every case of alleged poor performance as a case of incapability. It will often be regarded as misconduct. If the poor performance is due to negligence, indolence or disobedience rather than ill health, lack of training, lack of qualifications or incompetence then it is best seen as misconduct. In such cases a disciplinary rather than performance review procedure will apply. Selecting the right procedure will often make all the difference in determining whether any dismissal was fair or unfair.