Performance improvement - Discipline at work

This section gives guidance on how to deal with an individual who is not able to do the job they are employed to do. In all other ways their conduct may be perfectly acceptable but they just are not doing their job to the right standard. This subject is often referred to as "capability" in other sources. A separate section indexed opposite is gives guidance upon work conduct.

Employers need to be mindful of discrimination legislation whenever work performance is an issue. Bear in mind if discrimination is proven protection from unfair dismissal occurs from the first day of employment and the financial penalties from tribunals can be very large. If in doubt seek professional advice. Three broad categories arise:

1. New employees with less than 12 months service.

For the first 12 months of employment employees are not protected by unfair dismissal legislation. Employers should always review newly employed staff in the first six months of employment to determine if they are suitable. Our advice is that all new employees should be reviewed within their first two months. We suggest employers use the standard Performance Assessment approach indexed left.

If that first two month review reveals serious performance concerns effort should be made to understand the reason for the under-performance. If necessary additional training/ supervision should be provided. It may even be necessary to move the person into an alternative job.

Performance should then be reviewed again for all employees after four months again using the standard Performance Assessment approach. It should be made clear to employees that this review is critical and will decide their future employment with the organisation. Managers should also understand that the standard that is acceptable from the new employee at that stage is not "just acceptable". Employees must be rated as being able to do their job well (albeit they may still not be fully experienced).

Long experience tells us that under-performing or just-acceptable employees with four to six months service rarely make significant further improvement. Our advice is if their are serious concerns at the four month review it is better to advise the individual of such and indicate they should start to look for alternative employment.

2. Established employees with more than 12 months service.

Individuals in this category are protected from unfair dismissal. The assumption is that the employer has assured themself within the first 12 months of employment that this individual is accepted as a permanent employee. If the person's work performance is now unsatisfactory all reasonable efforts should be made to assist them to improve.

The Performance improvement procedure indexed opposite should be complied with in all respects. The idea of that procedure is for the employer to jointly investigate with the employee why they are having difficulty and put in place practical steps to remedy matters. It is really only after the informal and first formal review in that procedure that the emphasis changes from sympathetic review into a disciplinary matter.

But the basic steps in the disciplinary process warning/ final warning should be adapted to ensure the employee is given proper opportunity to improve their performance and the employer can if necessary demonstrate to an Employment Tribunal that they have taken all reasonable steps. Only as a last resort should the employee be dismissed. Before that step is taken we strongly advise employers seek professional advice.

3. The employee is disabled or suffering from acute of chronic illness:
More detailed advice is given in the Dismissal section indexed left. Dismissal on grounds of capability can be a fair reason for dismissal, but the employer should take account of the need not to discriminate on grounds of disability, hence the need to:

(a) Make all possible adjustments to accommodate the needs of a disabled person.

(b) If the employee is suffering from illness or disability obtain expert medical advice on the employee's condition and ability to perform the duties in question.

(c) Consult with the employee and consider alternative employment, including the possibility of part-time work.

(d) If the decision to dismiss is made, ensure that reasonable procedures are followed.

See also section on absence. Before the decision to dismiss is taken we strongly advise employers to refer the matter to us or seek other professional advice.