Dealing with underperformers the legal way

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Handling underperformance is an issue without a single solution – but there are some steps employers can follow to minimise litigation risks.  

HRM spoke to Matthew McGoldrick, senior associate at SBM Legal, about the best practice for addressing employees who are underperforming.

McGoldrick had the following tips:
  1. Where possible, employers should always attempt to address things informally before launching into a formal process. Sometimes there can be allegations in formal processes that employers haven’t looked to do something informally before hitting the employee with the official process.
     
  2. Use a person’s job description or position description alongside the requirements of their employment agreement as a key reference point for building the base of what the performance expectations are. This allows the employer to point to something definitively as what employees are required to do, providing one of the key requirements to be able to justify any disciplinary action that could arise. It also demonstrates to the employee what they have to do to meet the expected standards.
     
  3. Many performance issues are often related to workplace relationships or are difficult to define. These situations require employers to be as objective as possible while providing a standard that is as measurable as possible. This is key to being able to measure the employee in performance processes, but also to later being able to demonstrate that any action they have taken is appropriate.
When it comes to identifying problems with performance and creating solutions, McGoldrick advised employers to “keep it practical”.

“From a practical perspective, it’s important to keep in mind what the actual aim is in terms of a performance review process,” McGoldrick said. “If it’s to genuinely improve performance, then looking at it from the employee’s point of view to determine whether a performance improvement plan is achievable, measurable and able to be demonstrated is key.”

He also warned against taking action too rapidly if an employee’s productivity is not up to scratch.

“One of the things we see is employers jumping the gun,” he said. “They will need to consider whether it’s appropriate that warnings are given as first port of call rather than moving to termination at the end of a performance review process. The test would be to consider what a fair and reasonable employer would do when assessing your organisation’s processes.”

“Always question whether you have legal obligations to meet rather than simply going straight to termination.”
 
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