Performance Management

[VikingLass]

I have recently been put on a performance management programme, and after two weeks a review meeting was held, where I received a first written warning.

I was not informed of my right to be accompanied in the invitation letter or at the meeting and I believe this meeting constituted my stage two meeting, is performance management exempt from these statuatory rights in some way?

My belief is that at the point where it became obvious that this action would be taken, the meeting should have been halted and a further one arranged in which I was informed and entitled to a witness, if someone could advise please.

 

FYI: I have been employed with this company for 7 years, with no previous disciplinaries, the performance management was first mentioned following my annual appraisal (Jan 2011)

[SarEl]

You are correct. You were entitled to be accompanied. Any meeting at which a formal warning may be issued results in invoking the statutory right. In perfrmance management terms this only excludes meetings which are related to non-disciplinary matters (so revieiwing tragets, for example).

[VikingLass]

Thank you for your kind and prompt response.

Im worried that this process is happening so quickly and may escalated eventually to dismissal within a short period of time, if these rights have already been infringed but are given to me at for instance a further meeting that results in my dismissal, would I be in a position to claim unfair dismissal due to the failure to follow correct procedures at an earlier stage?

Secondly, does the company have to provide me with the performance management policy/capability policy at the outset (non received) or can they presume that its available to me upon request?

[SarEl]

Never depend on anything. If the warning was unfair you must appeal it now. And if you have not been given the policy, you must ask for it now. There are no guarantees that a tribunal, if this got to one, would uphold your case on a minor technicality at an initial hearing. You must fight now for your rights, not later - because later may be too late. Why are you being performance managed?

[VikingLass]

Thank you again, regarding the performance management: it was started because the company felt that I hadnt sufficiently hit last years objectives

[SarEl]

Thank you again, regarding the performance management: it was started because the company felt that I hadnt sufficiently hit last years objectives

 

Yes, it usually does. But is it true? And why is it true? In other words - is the employer right to be concerned about your performance? because context matters in relation to what happens. It can, for example, be the case that an employer may dismiss someone unfairly in law, but the employee doesn't actually get an award because they "brought it on themselves". That is why you cannot depend on the employer making a mistake to make a case.

[VikingLass]

Thank you so much, Im writing on behalf of my partner, he did ask for the company performance management policy this morning and was informed that the company doeesnt have one, instead he been emailed some general guidelines... - my question is, can a company carry out this programme with no formal documentation available to their employees? (at my job we have a capability policy available to all on the intranet) more to come...

[SarEl]

Not all employers do have a formal policy, and it is only good practice rather than a requirement to have one. If they do not then the guidance laid down by ACAS will be the standard to which they are held - so it would be worth looking that up on their site. But as I said, the crucial matter here is whether the employer is warranted in their action, as much as what a policy says or might say. Performance matters are always difficult because tribunals do not like interfering in what are, essentially, business matters. They have to assume that employers do not unreasonably get rid of perfectly good workers by claiming they aren't perfectly good workers, and that therefore performance matters are real issues for the employers business. So if there is more going on than meets the eye, we need to know in order to advise.

[VikingLass]

Thank you, Im still writing on behalf of my partner so I will do my very best to get as much information to you (my partner is working hard at the moment )

 

Regarding the performance management policy, he was provided the below "outlined process" upon request today (2 weeks after the performance management programme started). I would be grateful if you could let me know if you have any comments on this, all other policy's that I have found, including my own company version states that one is entitled to be accompanied, that is one thing that has never been mentioned to my partner.

 

The purpose of the Performance Review process is to improve performance and bring an employee back the required standards of performance

§ The employee is informed of the underperformance, detailing where performance is not to the required standard. Key objectives are set with clear timelines for the areas of underperformance to be resolved – usually no longer than four weeks.

§ During the 4 week period progress is monitored and, where necessary, guidance is given either informally or formally.

§ Dependent on the performance during the 4 week period a further meeting, usually towards the end of the 4 weeks, is arranged to summarise progress. The outcome of this meeting may be:

o A decision is reached that suitable progress has been made. Further objectives are set and a timeline for a further meeting and progress review is agreed, usually within 4 weeks

o A decision is reached that the progress required has not been satisfactory. As a result the Manager may issue a disciplinary warning for performance. This level of warning would follow the usual disciplinary warning process, and the level of warning is discretionary based on the performance issues involved or the level of seniority the person has within the business. Usually a further meeting is then arranged with clear objectives set for achievement over an agreed time period.

§ This review of performance is repeated with two potential outcomes:

o Performance continues to improve and a decision is made to discontinue the performance management process

o Performance continues to be poor and the next stage of the disciplinary process is invoked.

§ The ultimate outcome of continued poor performance is dismissal. However, this is rarely the case.

If the company is warranted or not, here are my thoughts on that:

Firstly, my partner has been with the company for a very long time, working his way up to a managerial position which he has held for at least 5-6 years, he has never had a sick day, he has worked his ass off for this company, as far as Im aware he has not been given a job description, the scope of the role has changed throughout the years as the company has expanded, his contract states a 40 hour working week with no overtime payment, he has worked an average of 60 hours per week for many years, never have proper days off as he is always on call, one of his peers recently had a "burn out" and was signed off sick for at least a month due to work stress, this person was recently managed out of the organisation so I guess this puts extra stress on my partner, if the company is planning to manage him out too through performance management bullying or if this is a genuine performance management, the company has not been clear on this so he feels he is in the dark and not sure whats being plotted by the management team, during this time he is asked to meet the targets set out in his performance management plan, to be reviewed in two weeks time, the final date, and also keep up with the day-to-day operations/demands and obstacles that they are throwing in his way, he is also providing cover for a peer who is on sick leave at this time.

My view on this is that he been under some serious stress for a couple of years now and not met the expectations set out by the company, but the company has not clearly set out what they expect of him, nor have they properly supported him.

 

When he had his first check in meeting this week (2 weeks into the performance review programme) he had prepared to show a progress report on how he was performing against set objectives, this had been brushed a side by HR and line manager and they had thrown in other focus areas plus disciplined him for failure to respond to 3 emails, a written warning, he was not informed that he could have someone accompany him to this meeting, and they did not take a break in the perf mgmt meeting for the discipline, it was all together as one big meeting. Im really shocked at the way he is being treated and angry, can they really behave like this? what can he do?

 

Hope the above makes sense

[SarEl]

Mostly, yes. Sorry about that. They must offer the right to be accompanied at any meeting at which a disciplinary warnings can be carried out, so not having done so is very bad on them. But as I explained, it may not be enough. If I could give you an absolute answer one way or the other I would, but tribunals do not often work like that, so minor breaches of the law (no notification of the right to representation at a first warning) may be little more than a slapped wrist. They should have listened to his explanantion of how he had been progressing towards meeting his targets, but it is possible that the "other areas of focus" can be justified in relation to the fact that it is overall performance which is being monitored. Arguably, someone could meet their tragets by not doing all the rest of their job, and this wouldn't be improved performance.

 

The workplace situation sounds like a nightmare, but I am afraid that there is little in law that I can see wrong. Unfortunately, as I said before, performance management hearings are awfully hard to win in tribunal, and they are not cases that any of us cherish as they seldom win (for the employee). In hindsight the advice should have been get out - of his own accord when he saw how bad things were becoming. But hindsight is a wonderful thing.

 

But unfortunately at this stage there is also, apart from appealing, nothing that he can do. If he apealed on the grounds that he was denied his right to representation then they would have to do the meeting all over again, and at least this would buy some time and provide him with a witness - but little more. I wish I had a magic wand for you, but I am afraid I don't. Sorry.

[VikingLass]

Thank you so much for your prompt feedback on this, it has been very helpful to us, my partner is going to appeal... and Im going to play the Euromillion lottery tomorrow....to be continued

[SarEl]

Buy a ticket for me!

[VikingLass]

I will give you 30%

[SarEl]

Heh - for that money I will represent your OH. My clients don't pay that much!

[VikingLass]

I would be grateful if you could provide me with feedback on the following two matters (on behalf of my partner again...)

 

Disciplinary

He received the disciplinary letter yesterday, a written warning to be on his file for 9 months (the first warning ever received), the content of the warning he agrees with but he believes he was "set up" to fail. The company failed to follow the disc procedure ie allowing him to have a witness.

His question is, should he appeal re the failure of following the procedure ie statuatory rights ?

Is there anything he gain in appealing or is it a route to avoid? (the appeal would be set out to the MD who started the perf mgmt programme)

 

Performance Management Programme

I have researched the entire Internet and every policy/guideline incl acas I have found states that he had the right to be accompanied during this meeting, the company failed to inform him of this.

2,5 weeks ago: first perf mgmt meeting, objectives set by company, to be reviewed a month

This week: he is called in for a review of this and also given a heads up he may receive a disciplinary, nothing said about being accompanied

Yesterday: Disciplinary letter received (over email) this letter also includes the perf mgmt programme and they have changed the objectives set out two weeks ago, and added a final date 7 march, stating it will be reviwed again in 2 weeks time, these objectives has not been mutually agreed, my partner now have 7 days to comment/appeal.

One of the new objectives is to respond to emails within 24 hours! this one I find absolutely crazy, in my view the company is saying he should work 7 days a week.

Question: Should he appeal with regards to performance management programme, that they have failed to inform him that he can be accompanied? or just leave it, accept, do your best and await outcome in 3 weeks? or hold your hands up and beg them to demote you? oh dear!

[SarEl]

I would be grateful if you could provide me with feedback on the following two matters (on behalf of my partner again...)

 

Disciplinary

He received the disciplinary letter yesterday, a written warning to be on his file for 9 months (the first warning ever received), the content of the warning he agrees with but he believes he was "set up" to fail. Unfortunately this isn't relevant to anything with the possible exception of an appeal hearing. He cannot prove that the targets are unreasonable, or that he is being set up to fail. As I indicated previously, the law is exceptionally reluctant to intervene in such matters because it is not their responsibility to set or judge an employers business targets, so targets would have to be extremely perverse for them to consdier the targets unfair.

 

The company failed to follow the disc procedure ie allowing him to have a witness.

His question is, should he appeal re the failure of following the procedure ie statuatory rights ?

Is there anything he gain in appealing or is it a route to avoid? (the appeal would be set out to the MD who started the perf mgmt programme) As I have said, he really should appeal on these grounds. If he fails to do so, this issue in itself may not be sufficient to obtain a ruling of unfair dismissal - it would only be an automatically unfair dismissal if the failed to notify of the right to be accompanied at the actual dismissal hearing. At an earlier stage it may be considered nothing more than a minor lapse. On the other hand, whilst he fails to appeal, he runs the risk of never having anyone who can verify his side of the hearing and what is said. Appealing is also evidence that he did not accept what happened, which he may need.

 

Performance Management Programme

I have researched the entire Internet and every policy/guideline incl acas I have found states that he had the right to be accompanied during this meeting, the company failed to inform him of this. I think we have flogged this point to death

2,5 weeks ago: first perf mgmt meeting, objectives set by company, to be reviewed a month

This week: he is called in for a review of this and also given a heads up he may receive a disciplinary, nothing said about being accompanied I am confused - if the objectives were to be reviewed in a month, then he has a right to expect that to happen. So whilst it is ok for the employer to have "interim meetings" to see how progress is being made, or even to say that progress is not being made and that if it does not improve it will lead to a disciplinary, they cannot then proceed to the disciplinary before the month review point. They cannot unilaterally shorten the timetable. This is also a point of appeal and should be appealed.

 

Yesterday: Disciplinary letter received (over email) this letter also includes the perf mgmt programme and they have changed the objectives set out two weeks ago, and added a final date 7 march, stating it will be reviwed again in 2 weeks time, these objectives has not been mutually agreed, my partner now have 7 days to comment/appeal. I have already dealt with the matter of the disciplinary in respect of both the right to be accompanied and the timetable being changed - these should be appealed. In respect of setting targets, these may be varied, and the employee does not have to agree them. If he feels that they are unfair then he should comment / appeal, but in itself this part is down to the employer to determine. The point about commenting or appealing is really to collect evidence for himself. I would suggest that at this stage he should go to "full disclosure" - appeal the whole process is unreasonable on the grounds of all the things that you have already mentioned - the fact there aren't enough people to do the work, his long hours, stress - the whole kit and caboodle. This puts everything he has to say on the record and the employer cannot deny that they knew nothing about it.

 

One of the new objectives is to respond to emails within 24 hours! this one I find absolutely crazy, in my view the company is saying he should work 7 days a week.

I know this is distressing, but let's not get silly now. Stay calm and objective, because you help nobody if you don't. Why do you think that people represented by lawyers do better in tribunals. It isn't because the necessarily have the best cases - it is because for lawyers it is a job and nothing more, and we don't get subjective or emotional about it. Not even the employer would expect e-mails to be answered when somebody isn't in work! They wouldn't be daft enough to hand a perverse target to him because that would be something the tribunal would latch on to. He should clarify this pint, but it is obviously within 1 working day.

 

Question: Should he appeal with regards to performance management programme, that they have failed to inform him that he can be accompanied? or just leave it, accept, do your best and await outcome in 3 weeks? or hold your hands up and beg them to demote you? oh dear! This is a judgement call. Apart from the appeal bit which I have covered extensively. He should appeal on the grounds outlined. But whether he waits and sees, or (if it is possible) asks for a demotion simply to retain his job, cannot be a point of law. If he gets dismissed he can claim unfair dismissal. He may get a win - or he may get a settlement. But nobody can guarantee you that. If he gets demoted then it may give him some breathing room to find another job and get out. But that also isn't guaranteed.

 

I have to type something here but I haven't got anything else to say!

[VikingLass]

Thank you again for your brilliant advise, sorry for my repetitveness earlier, as you say Im emtional and not thinking logically

However, one thing on my mind, regarding my partner; OK looks like he can appeal regarding a couple of things, what is the likelihood that the company hits back harder at him I wonder, I was thinking could he just in writing say, listen guys, you screwed up my rights here, what is your desired outcome of this whole thing? demote me, get rid of me, help me achieve the standard of work required and carry on with my job, ie putting the cards on the table, its tiresome all of this even for me as a partner.....

[SarEl]

I can't really say - that is a judgement call. Given that he believes that he is being managed out, he has nothing to loose by appealing. Since this leads to dismissal, how much worse can it get? On the second issue - he knows the people involved and whether this is a good idea or not. I cannot see that any more harm can be done by it if it is possible to have a frank discussion. I also cannot tell you to try to covertly record such a conversation because that would be wrong of me. But if that happened it may not be admissible evidence. Not that it would happen anyway because I didn't tell you to.

[VikingLass]

Thank you for your advise, my partner has decided not to appeal, he has picked up the pace and now working hard to achieve the objectives set and hope that they are happy with it at the review date and that he is treated fairly, I hope that this will work out ok for him.

[blipvert]

Interesting thread, sounds terrible, out of curiosity, is this a British company and do these pmp's originate from HR in that they have targets.

[blipvert]

A very interesting article from UNITE on Performance Management.

http://www.unitetheunion.org/pdf/(JN3144)%20Performance%20Management%20Briefing.pdf