Dealing with poor performance: case study 2

Caroline Noblet of Squire Sanders Hammonds continues a series of articles on dealing with poor performance with a second case study, which looks at a situation in which an employer wants to address the poor performance of two of its employees. During the performance management process, one employee goes off sick and the other raises a grievance. 

Just-in-time plc is a supplier of components to the automotive industry. The export sales team's manager, Robert, is concerned about the performance of two employees in his team, Jane and Mike. While the team's overall sales figures have increased, the records show that Jane and Mike's individual sales numbers have declined. 

Robert raised concerns about Jane's falling sales during her performance appraisal earlier in the year.  In line with the company's performance management procedure, Sarah, Just-in-time's HR manager, invites Jane to a meeting to discuss her performance. Jane promptly goes off sick with stress. What should Sarah do?

While Sarah may suspect that Jane is malingering, it is important that she acts reasonably in how she deals with the situation concerning Jane.

There are a number of possible steps that Sarah could take. If Jane has been signed off sick and is likely to be absent for more than just a few days, it would be inappropriate for Sarah to press ahead with the performance management procedure straightaway. The company may have to wait until Jane returns to work before resuming it. However, this does not mean that Just-in-time will never be able to deal with Jane's performance issues if she remains absent on sick leave in the longer term.

Sarah could try to speak to Jane to find out what is causing her stress and whether or not there is anything that the company can do to address her concerns. If Jane is stressed about having to attend the performance management meeting, Sarah should tell her that she will be allowed to take regular breaks during the meeting. She could offer to conduct the meeting off site or even at Jane's home. Sarah should explain to Jane that, while it is natural to feel stressed about meetings of this nature, she cannot avoid the issue simply by staying at home. If Jane indicates that there are other factors involved (for example she has a poor working relationship with another employee, or there is a training need), Sarah should discuss these with her and consider what action the company needs to take to address them.

By speaking to Jane, and checking her doctor's statements of fitness for work, Sarah may be able to assess when Jane is likely to return to work. However, if Jane is unable or unwilling to indicate when she will be in a position to attend the meeting, Sarah should consider obtaining a medical report from her doctor to try to establish this. Sarah needs to be perceptive throughout the performance management process to any indication that Jane's mental state amounts to a disability under the Equality Act 2010 (see Definition of disability in the Disability discrimination section of the XpertHR employment law manual). If it does, Just-in-time must comply with its duty under the Act to make reasonable adjustments, for example in how it conducts the performance management process. This could include asking Jane to provide written explanations for her performance issues rather than attend meetings in person.

If Jane fails to cooperate with Sarah in her attempts to rearrange the performance management meeting, or the medical evidence is inconclusive as to whether or not Jane will be able to participate in it, and if she is, when, Sarah should make it clear to her, in writing, that a persistent failure to attend the meeting without a good reason will leave the company with no option but to decide the issue based on the information that it has. In other words, it will have to proceed without her input. Again, because Jane is absent due to stress, Sarah needs to be conscious of potential disability discrimination issues that may require Just-in-time to make reasonable adjustments to the performance management process.

A medical condition like that purportedly suffered by Jane does not normally justify a total and prolonged failure to cooperate with normal management procedures. However, if the medical evidence suggests that it would be inappropriate for the company to require Jane to attend a meeting, and Jane's absence is likely to be prolonged, it may have no option but to suspend the performance management process for a reasonable period. Alternatively, the long-term sickness absence process may end up superseding it.

It is important that Just-in-time is seen to be acting reasonably while at the same time it makes clear to Jane that she cannot avoid the issue of her poor performance by remaining off work indefinitely.

Finally, if the company provides counselling and/or an employee assistance programme, Sarah should make Jane aware of this service.

Jane eventually returns to work after two months' absence when her company sick pay expires. Sarah resumes the performance management procedure. She has a meeting with Jane and sets out the performance issues that Robert has identified and the targets that she needs to reach. She also offers Jane training to help her reach the targets and sets a date for them to be reviewed.

In relation to Mike, Robert has already had some informal discussions with him about his performance concerns but Mike's sales figures have not improved. Sarah decides that she has no alternative but to start taking Mike through the performance procedure. When he is invited to a meeting to discuss his performance, Mike raises a grievance against Robert. He alleges that Robert has always had a grudge against him and has singled him out as there other people in the team whose performance is worse than his but who have not been spoken to. What should Sarah do?

Some employees do not respond well to their employer's attempts to address their poor performance. It is not unknown for employees who have been spoken to about their performance to accuse their employer of bullying or discrimination. This is difficult for employers to deal with, but they can move forward and manage the situation effectively.

The nature of Mike's grievance will determine, to some extent, how Sarah proceeds. If Mike's grievance is unrelated to the performance issues that the company is trying to address, it will normally be safe for it to progress the performance review meeting and deal with the grievance separately. If Mike's grievance essentially constitutes his defence to the company's assertion about his underperformance, it would usually be sensible for it to deal with both the matters as part of the same process. The Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) confirms this approach. However, if Mike's grievance seeks to impugn the integrity of the individual making the decision about his performance (ie Robert), the safest course of action for Sarah would be for her to adjourn the performance management meeting and suspend the performance management procedure until Mike's grievance has been resolved. Again, the Acas code confirms this approach.

As Mike's grievance is about Robert, it is not appropriate for Robert to hear the grievance. It should be heard by another manager who is not the subject of the grievance.

Just-in-time goes through its grievance procedure, the outcome of which is that Mike's grievance against Robert is dismissed. Robert is able to produce evidence that Mike's work performance is not to the standard of that of his colleagues and he has not singled him out as Mike has claimed. Mike does not appeal against the grievance outcome and Sarah resumes the performance management procedure.

Robert's experience with Mike demonstrates the benefit for employers of keeping records that show that an employee's performance has deteriorated. Records can be used, as they were by Robert, to counter allegations of unfair treatment by employees whose performance the employer is trying to address.

Next week's topic of the week article will be some frequently asked questions about dealing with poor performance and will be published on 21 November.

Caroline Noblet (caroline.noblet@ssd.com) is a partner at Squire Sanders Hammonds.

Further information on Squire Sanders Hammonds can be accessed at www.ssd.com.