• Use probationary periods effectively. If there are concerns about a new employee's performance, it may be possible to extend the probationary period or to dismiss the employee at the end of the probationary period. Check your contracts to ensure that the wording provides you with the ability to do so (and be aware of potential claims that do not require one year's continuous service). Ensure that you have a mechanism in place which prompts an end of probation review and that the end of the probation period does not simply slip by.
  • Have your line managers received training on managing performance and do they regularly conduct performance reviews? If not, consider running some training and encourage the timely and accurate completion of appraisals / performance development reviews.
  • Identify the problem: is it a 'can't do' (performance) or a 'won't do' (conduct)?
  • Check what policy applies – do you have a capability procedure? If yes, use this. If not, does your disciplinary policy also deal with performance matters?
  • Read the Labour Relations Agency Code of Practice on Managing Discipline for guidance on managing performance.
  • Try to resolve matters as soon as they emerge by an informal meeting with the employee, but make it clear that a formal process under your capability/disciplinary procedure (as appropriate) could be instigated if the issue is not resolved. Ensure that the line managers involve HR as early as possible. It is often a good idea for HR to attend any potentially difficult meetings.
  • Be careful about any emails (or other notes / memos etc) sent to employees, or about dissatisfaction with a particular employee, as they will all be disclosable documents in any future claim.
  • Keep records of any conversations, meetings, emails or letters (both informal and formal) with employees relating to their performance.
  • Agree some 'SMART' objectives, or an improvement plan, as the first step of the formal process and identify any training, development or additional support required. SMART objectives are: specific in nature, measurable, achievable, realistic and set against agreed timeframes.
  • Encourage your line managers to have honest conversations about performance with their employees and provide the support and tools for your managers to have those potentially 'difficult' conversations. Do not encourage managers to give 'glowing' performance reviews if they are not deserved as it could make proving a fair capability dismissal in the future extremely difficult.
  • Consider whether there may be an underlying reason for the poor performance such as a lack of training, lack of understanding of what is required or stress.
  • Do not ignore, publicly reprimand or side-line an employee in the hope that they will leave.
  • If the employee goes on sick leave during the performance management process, or as a reaction to it being addressed, you do not necessarily have to halt the performance management process but advice should be taken.
  • Occasionally, from both a commercial and a practical perspective, it can be better to reach a financial agreement with the employee to leave the business. There are high risks associated with such a proposal and the employee should be asked to sign a Non-ET1 agreement or a compromise agreement in order to prevent the employee issuing proceedings against the business.