11 - Managing underperformance & relevant legislation Flashcards
Underperformance
Persistent failure to reach standards set by the organisation as set out in:
Individual’s job description, SOR or similar document
Objectives as part of performance management process
FCA COCON rules
Disciplinary action only taken if failings are marked or persistent, not one or two isolated instances of failing to meet a personal objective.
Disciplinary action only when….
other courses of action have been followed:
Employee made aware of the areas underperforming in. No doubts about the standard expected & the consequences of not improving.
Full support must be identified and offered to address the issues.
Employee given reasonable chance to improve performance.
Management intervention when underperformance occurs (4)
Motivational - encourage acceptable levels of performance. Targets, praise, rewards, a wider range of work.
Training - up skilling.
Behavioural - change the behaviour. If person not putting the hours in a warning may fix that.
CPD - may be result of not keeping up to date with changes. Address the shortfall and develop the individual.
If unsatisfactory performance contributes, disciplinary action needed - 3 main categories
- Rehabilitation - bring about change to performance in line with company expectations.
- Deterrence - make an example of someone so others don’t do it in the future.
- Retribution - punishment for inappropriate behaviour.
Misconduct
Behavior outside rules set down by organisation or regulatory norms or is illegal.
Minor misconduct - regularly late for work, using work computer for gaming, not keeping company car in good stage. Usually verbal reprimand for a single incident but could get more serious of behaviour persists.
Serious misconduct - repetition of minor misconduct, abusive behaviour, drinking in the workplace.
Written warning first (part of EE record) could lead to final written warning and ultimate dismissal.
Gross misconduct - wilful damage, serious breach of health and safety rules, fraud or theft, illegal things.
Suspension without pay, transfer, demotion or dismissal. Normal notice period in contract doesn’t apply.
ACAS (Advisory, conciliation & arbitration service) code of practice on disciplinary and grievance procedures.
Firms don’t have to follow the code but have to demonstrate reasonable behaviour.
First warning- in writing -sets out
- why performance is unsatisfactory
- the potential consequences
- warning will be disregarded after a period of time of satisfactory performance.
Final written warning- outlines same as first step but make clear issued because no improvement & offense serious enough to warrant this stage.
Dismissal or action short of dismissal - dismissal, demotion, transfer or suspension while alleged offense investigated.
ACAS guide recommends a firms procedures should;
Formal, simple & written procedures.
Indicate who they apply to.
Be available to employees.
Give examples of serious and gross misconduct.
Specify what actions can be taken and by what level of management.
Raise and deal with issues promptly & consistently.
Ensure employee told of the complaint.
Given chance to put their case across.
Option to be represented by a colleague or union official.
Ensure a full investigation takes place before disciplinary action.
Ensure employee not dismissed for one incident unless gross misconduct.
Provide a right of appeal.
The disciplinary process- 5 steps
- Establish the facts
- Inform employee of the problem
- The meeting - both sides - time to prepare, set out the case, call witnesses.
- Decide appropriate action
- Opportunity to appeal
Termination - notice periods observed unless gross misconduct
Minimum requirements
Less than 1 months service = nil
1 month - 2 years = 1 week
2 years = 2 weeks
3 years = 3 weeks
over 3 years = 1 week a year upto max 12 years.
Other rules to follow:
Notice of termination must specify the date it is effective
Once given, cannot be withdrawn without agreement from both parties
Employees with 2+ years service (as long as started work before 6 April 2012) must be given written details of dismissal within 14 days if they request it
All have the right to appeal
Termination - notice periods observed unless gross misconduct
Minimum requirements
Less than 1 months service = nil
1 month - 2 years = 1 week
2 years = 2 weeks
3 years = 3 weeks
over 3 years = 1 week a year upto max 12 years.
Fair and unfair dismissal
By law, employers must show..
a valid reason for dismissal - I.e. conduct or capability
they acted reasonably in the circumstances
Unfair dismissal relating to
age
sex
pregnancy
union membership
refusal to carry out dangerous work/ health & safety grounds
if nothing is wrong with work performance
exercising or trying to exercise a statutory right
constructive dismissal - a person forced to leave because of employers’ behaviour
Employment tribunals
Settled in the workplace informally.
If not, offered access to ACAS who will try and resolve problem through discussion.
If no agreement reached, case will go to employment tribunal.
Employee must have worked for their employer for minimum period to qualify for the right to claim unfair dismissal at a tribunal.
2 years If employment started after 6 April 2012
1 year If employment started before 6 April 2012.
Typically have to take it to tribunal within 3 months less one day from the effective date of termination.
Burden of proof usually on the employer to show the dismissal was not unreasonable. So T&C paperwork to show 1-1s, training being conducted etc = valuable.
If employee wins, reinstatement or compensation.
Max award made on or after 6 April 2024 is £115,115 or 1 years salary.
Basic award calculated on a fixed formula taking into account age and service.
Compensatory award amount based on the loss of past or future earnings and benefits and how unfair the dismissal was. Excludes health and safety and whistleblowing claims as maximum amount is uncapped.
Breach of contract cases also just referred to as unfair dismissal. Breach of contract awards capped at £25k through tribunal but can go through civil courts to pursue a larger claim.
Discrimination cases are unlimited and can claim for damages to feelings.
Relevant legislation
Equality, diversity & inclusion - collective expression about policies to ensure staff are not unfairly discriminated against.
The equality act 2010 - protect individuals rights, promote equal opportunities and pay.
Relevant legislation
Equality, diversity & inclusion - collective expression about policies to ensure staff are not unfairly discriminated against.
The equality act 2010 - protect individuals rights, promote equal opportunities and pay.
4 main types of discrimination identified in the Equality Act 2010
- Direct discrimination - treating someone less favourable because they have or are thought to have a protected characteristic.
Examples - not employing someone because of their sexual orientation. Not promoting someone because of their race. Paying a man more than a woman for the same job.
Indirect discrimination - where there is a rule, policy or practise that although applies to everyone, disadvantages some people due to a protected characteristic. Can be justified if can show you acted reasonable when managing the business.
Examples - only take appointments by phone would discriminate against the hard of hearing. Firm introduces a longer working day but only a 5 day week, could be discriminatory against those who get tired easily.
Harassment - unwanted conduct relating to a protected characteristic, which has the purpose of violating someone dignity or being hostile, offensive or humiliating.
Examples - telling sexist or racist jokes in the workplace & employer fails to act.
Victimisation - employee treated badly because they have made a complaint or grievance under the act.
Examples - management ostracised someone who raises a grievance. Taking action against someone who discusses their pay with a colleague (even if their contract has a secrecy clause)
