© shepherd and wedderburn llp appraisals and performance management presentation by kim pattullo 4...

© Shepherd and Wedderburn LLP

Appraisals and Performance Management

Presentation by Kim Pattullo

4 November 2008

2 Appraisals and Performance Management

AppraisalsAppraisals


Performance Management – Setting the Legal Performance Management – Setting the Legal FrameworkFramework

Performance/capability is one of the potentially fair reasons to dismiss (s 98(2) ERA 1996)

But fairness:S98 (4)(a) depends on whether, in the circumstances

(including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee: and

(b) shall be determined in accordance with equity and

the substantial merits of the case

Currently also SDDPs must be followed



WILL v SKILLWILL v SKILL

Disciplinary or capability procedure

Employee knows what to do Employee does not know/is not able/something has happened

Deliberately choosing to do/not do

Disciplinary procedure Chastising

Capability procedureSupportive


Recent employee, never made the grade

Consider whether any discrimination or other issues

Provide assessment and support

Watch out for probationers (see later)

Good employee in past, recent promotion

Does employee understand role?

Has employee received training and mentoring?

Does employee need a bit more assistance e.g. computer software understanding/repeat training

Good employee for several years, recent unexplained dip in performance where has performed well in the past

Ideally get to the bottom of the issue

Or at least be able to demonstrate attempts to do so

Investigate more widely any objective evidence e.g. sales appointments and sales results

Highly likely to be an underlying issue e.g. ill health, problems at home, bullying/harassment at work

Effort Effort+ Effort+++

Management need to make a decision on what they believe is happening



Fairness IssuesFairness Issues

To demonstrate fairness, are key legal issues managers should have at the forefront of their minds: 1. TRUST AND CONFIDENCE DUTY

• What is it – contractual term – risk = constructive dismissal• What does it mean in practice

- Managers need to advance plan- Emotionally in control – not flustered/ill prepared- Contemporaneous discussions – not stored up for

annual appraisal - Careful choice of words and appropriate tone- In order to avoid employee perception of

unreasonable treatment- Realistic targets and timescales for improvement- Training and support provided- Proper explanation - not “I just want you to do

better”



2. DISCRIMINATION ISSUES

• Sex*• Race*• Disability*• Sexual orientation• Religion• Age*



3.EVIDENCE IN TRIBUNAL

Tribunal will focus on:• the employee has been made aware of the poor

performance, support has been provided, opportunities to improve and warnings of consequences if insufficient improvement.

• how much effort been made to retrieve the poor performance (depends on size of employer, how long employee has worked for the employer etc)

• the procedure followed, including following the employer’s policy

• does the objective evidence support the view of poor performance

- previous appraisals- pay awards and lettersobjective evidence e.g. sales figures, time recording etc - glowing customer reviews


Practical TipsPractical Tips

1. APPRAISALS

• Whilst helpful in setting objectives and reviewing, can lead to results-oriented view, focussing on what is achieved and ignoring the how and the longer term development issues

• Widely acknowledged that annual appraisal = blunt instrument

• Whilst helpful as part of the paper trail in a Tribunal case, unlikely of itself to solve performance issues

• Preferred aim = performance management throughout the year by managers, backed up by regular appraisals


Practical Tips (Cont)Practical Tips (Cont)

1. APPRAISALS (Cont)

• Managers need to have the soft skills, including coaching to facilitate these objectives

• This includes encouraging the shooting stars by- communicating regularly- incentivising- ascertaining what is motivating beyond

financial

• And includes early review and ascertaining performance issues in others



2. PROCEDURE/POLICY ISSUES

Currently, need to follow SDDPs.

However – ACAS CODE OF PRACTICE will replace SDDPS (April 09)• Focus on:

– Informal Resolution– Mediation– “Soft skills” of managers must be highly

evolved

• Are differences to the SDDPs• 25% uplift in awards for failure to comply with new

Code; Guidance will be a benchmark used by Tribunals to measure the employer’s handling of poor performance

• Managers’ training strong recommendation to revise policy now (and separate

from disciplinary policy)



3. DON’T BE A SLAVE TO A POLICY THOUGH:

See IGEN v WONG (Court of Appeal 2005)

Employee believed appraisal was unfair and refused to sign appraisal form

Employee was subject to disciplinary procedure for the refusal

Managers could not provide adequate explanation (burden of proof)

Race discrimination was inferred

High emotion/frustration of managers governed their behaviour



4. MANAGERS STILL THINK THEY CAN DISMISS PROBATIONERS WITHOUT CONSEQUENCES

ANSTEY V ADVANTAGE HEALTHCARE GROUP LTD

(ET 2006)

• Employee on probationary period• No regular performance review throughout probationary

period• Employee informed manager she was pregnant• A week later she was dismissed for “poor performance”• Burden of proof • Inferred that dismissal was on grounds of her

pregnancy



5. INVESTIGATE BACKGROUND REASONS FOR POOR PERFORMANCE AND ACT ON WHAT YOU FIND

DICKENS V O2 PLC (Court of Appeal 2008)

• During appraisal, employee reconfirmed she was

suffering stress-related illness and could not cope

• Employer told her to contact occupational health but took no further action

• Shortly after appraisal, employee signed off work from anxiety and depression and never returned

• Employer held liable for psychiatric ill health



6. THE INHERITED MESS

• Old manager gave glowing appraisals and avoided performance management

• New manager comes in and actively manages performance

• Support needed for new manager – otherwise risk of bullying/harassment claim


QuestionsQuestions

Any questions?

© shepherd and wedderburn llp appraisals and performance management presentation by kim pattullo 4...

Documents

long employee

legal frameworkrecent

lettersobjective evidence

size of employer

key legal issues managers

better appraisals

sales results

sales appointments