Jersey: Managing Performance - Steps To Take When An Employee Is Underperforming

Last Updated: 6 July 2012
Article by Colette Hunt

There is no legal definition of job performance, but simply, it is the assessment of how an employee performs their duties at work.

Essentially, an employer needs to identify the reason or root cause for the performance not being as it should be, as it was, or at the level that the employer wants it to be.

The situation can include an employee who is incapable of doing the job, is capable but is not contributing as required to do, is absent for frequent short periods or is signed off for a long time.

Having identified the main reason for the poor performance, either by way of having a quiet word with the employee or undertaking a formal investigation, the employer then needs to decide if something can be done to improve it. Having decided this, they then need to decide if they are prepared to expend the time (often many weeks or months), and possibly the cost, that may be required to do this.

Different procedures apply depending on if the cause is health related or not. But whatever the reason, the fairness of the procedure followed will be scrutinised if there is a Tribunal hearing and so it is advisable to give the issue due consideration. If an employer cut corners or skips out part of the relevant procedure, then they are always going to be potentially at risk of being found by the Tribunal as not having followed a fair procedure. So, it is worth taking the time to deal with the issue in the correct way, unless a decision is taken to enter into a compromise agreement and pay the employee the potential legal entitlements at that stage.

Where the poor performance is related to absence, if there is genuine evidence of unauthorised absence, then this can be treated as misconduct and the disciplinary procedure followed to address that.

However, where the employee is genuinely absent due to sickness, then the following four steps should be taken :

  1. Consult with the employee (and keep detailed notes of these discussions);
  2. Conduct a thorough investigation – allow the employee to adduce a report from their GP or treating Consultant as well as obtaining a report from a doctor instructed on behalf of the employer;
  3. Review the medical evidence obtained in light of the needs of the business; and
  4. Consider if redeployment is an option, and ensure that you are able to demonstrate that this has been duly considered.

If the correct procedure has been followed, and the employer concludes that there is good reason for the employment being ended, then it has nothing to fear subsequently if the employee is sufficiently disgruntled to commence a claim for unfair dismissal, because it will be able to fully justify both its decision and the process.

In terms of assessing job performance, as well as having appraisals, an employer can make it easier for themselves if they make use of a set of appropriately worded competencies.

One query that was raised at the Jersey seminar was the inappropriateness of using the same appraisal form for all of the employees in a company. An organisation that has a wide range of employee may decide to split these into blue and white collar, or different grades, for the purposes of appraisals. There is no right or wrong so far as this is concerned, provided the form that is being used is applicable to the employee that is being assessed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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