performance management anna denton-jones 1 st december 2015 navigating employment law

Performance managementAnna Denton-Jones1st December 2015

navigating employment law

Discussion

• What is performance management?• Do we neglect this area and why?• Why is it important to manage

performance in the workplace? • What happens if we don’t?


Performance management defined by CIPD (Armstrong & Baron) in 1998

• “a process which contributes to the effective management of individuals and teams in order to achieve high levels of organisational performance. As such it establishes a shared understanding about what is to be achieved and an approach to leading and developing people which will ensure it is achieved”.


CIPD “Performance management in action”

• “helping people to understand how they contribute to the strategic goals of organisations and ensuring the right skills and effort are focussed on the things that really matter to organisation and will make an impact on organisational performance”



Current thinking

• Traditional performance management is broken–We all hate appraisal systems– Focussing on weaknesses leads to more

poor performance– Employees rate systems/procedures

depending on what their relationship is like with their line manager

– Need to look at the psychology behind it


Humans and the way we work

• Motivated by challenges we are excited about

• 6 conditions – ingredients to performing well, all interlinked and required to happen, responsibility of both ourselves and our manager

• Get the manager to talk about the ingredients and not the process


Ingredient one

• Purpose–My work matters• Tasks• Collectively• Socially


Ingredient two

• Challenge– Stretching goals– Up for regular review– It’s OK if I miss the goal


Ingredient three

• Attention– Informal– Regular– At least once every two weeks– I’m noticed– Strengths are emphasised not

weaknesses


Ingredient four

• Growth mindset- Managers who believe in the ability of their people to learn and grow will achieve more.Encourage learning and allow mistakes.

Individuals who realise that they can grow are more likely to seize opportunities that will force them to do things that they might find uncomfortable: innovation occurs.


Ingredient five:

• Recognition– Fairness– It feels worth it

• To feel fair, I need to believe that it’s about me and what I’ve achieved, not about the person who gives it and their agenda.


Ingredient six:

• Choice

• When times get tough, the more choices we feel we have the more likely we are to keep going


Summary

• Stop tinkering with the PM system and focus on what you can do to create the right conditions for people to thrive

• Update feedback training to place greater emphasis on informal, descriptive feedback

• Support managers in how to pay more attention and tell people about the impact that their work has had and show how they are contributing to team and organisation’s objectives.


Summary

• 1:1s each month specifically focused on career coaching• Understand each of your team and

what they’re motivated by.• Be open with your team, sharing

mistakes, risks, successes, challenges and opportunities.

• Reframe failure as an opportunity to learn – leaders need to share examples.

• “You have a responsibility to ensure people are properly trained and supported in what they do and properly remunerated for doing so. But once you have fulfilled your responsibilities as good employer, it is right and proper of you to expect and indeed, demand that your team fulfil their responsibilities as employees” Steve Hackney


Findings of latest CIPD research

• The process is less important than its positioning, implementation and objectives

• Do we talk about it enough?– Gillian Box of Britvic “make it public how

people are doing so its starting to be about how we do business rather than a focus on targets without understanding the way we do things adds to organisational value”


DISCUSSION – WHY DO EMPLOYEES PERFORM BELOW PAR?


CIPD research suggests the following reasons why:

• Don’t know how to do their jobs• Experience obstacles that keep them

from doing their jobs• Don’t know what their job

responsibilities are• Fear negative consequences for doing

their jobs• Don’t understand the importance of

doing their job properlynavigating employment law

• Don’t want to do it the bosses way• Aren’t reinforced for doing their jobs

well• Received no negative consequences

for non-performance• Have the wrong priorities• Have personal limits



– WHAT TOOLS ARE THERE IN A MANAGER’S KITBAG FOR DEALING WITH PERFORMANCE?

Discussion

The performance management cycle

Role definition and

agreement

Development planning

Performance achievementMonitoring

Performance review


Legal overview – unfair dismissal

• All those with 2 years’ service have potential right to claim unfair dismissal

• “Capability” is a potentially fair reason for dismissal under the Employment Rights Act 1996– “assessed by reference to skill, aptitude, health or

any other physical or mental quality”– also qualifications

• s98(4) in reaching the decision to dismiss you have to show you have acted fairly and reasonably in all the circumstances including the size and administrative resources of the employer


Legal risks continued

• Your capability/disciplinary procedures may be contractually binding – breach of contract if you didn’t follow them

• “Constructive dismissal” arguments• Discrimination – uncapped damages


Where is the dividing line with disciplinary?

• Won’t do vs Can’t do?


Initiating the performance management procedure – who and

when?

Investigatory steps

• What does the contract say?• What does the job description say?• Past appraisals • Training records• What instructions have been put in writing?• How can we measure any failings?• Have steps been taken to raise this issue

before?• Are we on notice of any health or other issues?


First stage meeting with the employee

• Letter of invitation– Raise awareness that performance

concerns exist– Give a “flavour” of concerns– Provide any relevant background

documentation– Do you let the person be accompanied?

(Right to be accompanied doesn’t strictly apply)


First stage meeting with the employee

• How to conduct the meeting• Next steps• Note taking• Confirming outcome in writing

afterwards –– Performance improvement plan– Any support mechanisms to be put in

place– Set review period and timetable


Performance Improvement Plan

• eg:- you are expected to:-– Attend all weekly meetings promptly, having

read the briefing papers and prepared to update others on the progress you have made on action points allocated to you at the previous meeting

– Provide a detailed report by 31st October on the feasibility of merging the X team with the Y team, to contain proposals of the steps you think would need to be taken to achieve this and any associated costs and benefits.


Bob

• Bob has been the subject of a complaint from a customer. The nature of the complaint is an anonymous comment on an web feedback form. It said “I do not expect to be insulted when I am on the phone”.

• When you see this your heart sinks as you can easily envisage how the problem has arisen: Bill has a tendency to be quite forthright and can be quite off-putting to people who aren’t used to his manner. You know you should really have picked up how he speaks to people before but have never got round to it.


Bob.... continued

• After the discussion with Bob everyone notices a difference, for the better

• 3 months later however things start to slip and he is back to his old tricks

• What do you do?


Second stage - Invitation letter

• ACAS “The notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting.”

• “It would normally be appropriate to provide copies of written evidence..with the notification”.

• Given in advance of the meeting - long enough to allow the employee to prepare


Right to be accompanied

• Who has this right?• Who can they be accompanied by?• “Present the worker’s case, sum up

and respond on the worker’s behalf to any view expressed.”

• What are your experiences of companions?

• Right to postpone hearing – 5 working days


How are you going to conduct the meeting?

• What are the key things to discuss?• What might the outcome be?


What if the employee?

• Goes off on the sick?• Doesn’t attend?• Brings along a stroppy trade union rep?• Says they want to record the meeting?• Is silent and unco-operative, hysterical

or violent and abusive?• Makes an allegation about you eg:- you

are bullying me?


Warnings • Document what the warning is for

and how long it will last – must be sufficiently specific

• Diarise review and monitor • Only similar issues will justify

increased level• If employee reforms – clear record at

end of period• Spent warnings cannot be relied upon


Improvement by the employee

• Review meeting• Praise, if turning the situation around• If partial, praise those aspects in

which improved but stress those that not and that you expect them to keep working on those issues – diarise further review date


No improvement

• Repeat process with a view to a Final Written Warning as the outcome this time


Dismissal

• Last resort after repeated warnings• Have we considered alternative

employment in a role in which they might be suitable?

• On notice or with a payment in lieu of notice


Why are appeals important?

• Your procedures indicate an appeal will be available.

• Unfair dismissal s98(4) Employment Rights Act 1996 – whether the employer acted fairly in all the circumstances in treating the reason for dismissal as justifying dismissal

• Crucial opportunity to correct any procedural failings by conducting a fair appeal

• The ACAS Code of Practice states that disciplinary procedures should provide a right of appeal – risk 25% uplift if don’t


Clark v Civil Aviation Authority 1991

• Defects in procedure may be remedied on appeal if there is a full rehearing.


2 days after the outcome letter goes out

• A letter is received saying Paul wishes to appeal. He says the process was unfair as he was the victim of age discrimination.

• How will you deal with this?


Worst failings giving rise to a finding of unfair dismissal

• Failing to give warnings when shortcomings first emerge

• Not recording things properly• Failure to give adequate notice to the

employee of meetings• Failure to inform the employee beforehand

of the substance of the matter• Failure to inform the employee that if the

situations doesn’t improve they could be dismissed


• Acting on issues not discussed with the employee or not being given a chance to improve

• Decision-makers being influenced by others outside the process

• Appeals being heard by those with prior involvement in the matter

• Inconsistent response to performance issues


Probation

• Contractual right to notice – may be shorter during probationary period

• Expectation that having to ‘prove’ themselves

• Right to be accompanied• Generally no right to claim unfair dismissal• Discrimination law still applies• If raise “complaints” – may fall within

unfair dismissal as whistleblower


Minimum procedure to apply to probationer

• Invite to meeting to review probationary period

• Advise of right to be accompanied• Meeting to confirm dismissal • Give contractual notice • Give right of appeal


performance management anna denton-jones 1 st december 2015 navigating employment law

Documents

cipd performance management

company performance

colleagues performance

navigating employment

strategic focus

actionhelping people

shared expectations

progress of organisation