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YOUR CONTRACT OF EMPLOYMENT / PUBLIC INTEREST DISCLOSURES
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Fair
Employment Law
The starting point in any Claim for Unfair dismissal on the basis of an Unfair Capability process is not that the Claimant was performing well and the employer has got it wrong ( bound to fail) - the starting point is that the Claimant was struggling and the company failed to employ fair means to carry out a dismissal , whether or not any capability process was operated before dismissal. If the employer gives a reason for dismissal and the employee thinks that this is not the reason , i.e a sham to prevent a time consuming capability procedure then the Claim is that the dismissal is Unfair for failure to give the correct reason. Usually the alternative reason is some species of conduct , very often suspect from the start since to dismiss in the first instance that conduct has to be serious and in consequence not readily to hand for the employer to use. A rather clumsy example may be a hash of smaller issues of conduct , conflated (wrongly ) to constitute, in total, serious or even Gross Misconduct. A good guide to a forced situation will be the length of the letter of dismissal: if an employer has to take 5 pages to dismiss someone then he is struggling on reason before he starts. All employees should have some regular supervision meetings over a period of time before any formal action is instituted. Many good employers have monthly supervision meetings in any event specifically to discuss progress. This gives the employer and the employee chance to discuss and agree any day to day performance issues, more importantly the employee knows what is expected of them at all times and does not have to guess. If the supervision sessions do not improve performance then a more formal system is adopted but the employee must be aware that this is being used against them and the consequences if they fail to improve. A fair process would involve a joint meeting to discuss all aspects of performance and the reasons why performance is not considered satisfactory including external influences. The management should have prepared for that meeting a Development Plan , or some such Plan emerge from the meeting. The Plan will be in the form of a number of performance objectives to be achieved in a set period of time. The objectives should be achievable (given improving performance) and should be capable of being objectively assessed as to achievement or not. Most importantly the employee must agree that they can be achieved and in that sense sign up or commit to the Plan. The employer must commit to providing special support if required , provide training to fill knowledge gaps and not expect an employee who has been performing poorly over a period of time simply to change without that support. Having set out the Plan and provided the support the employer can then monitor the progress and at the end of the review period decide whether performance has improved and if not why not. A joint meeting can then be held to decide where to go from there. It may be that the employer will carry out a dismissal if there has been no improvement in performance , or will adjust targets and continue if there is nothing conclusive. They may decide that the development plan has been successful and proceed with enhanced supervision until the need disappears.
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Fair
Employment Law
CAPABILITY
Not all of us performs well at all times
in their job. There are various reasons why sometimes performance is
less than expected. There can be a variety of causes , personal problems
, illness or work factors such as bullying or poor workplace
relationships, changes in management and management culture, reduction
in resources and combinations of some or all of these factors that
produce an environment that does not allow employees to flourish.
Sometimes , particularly with new employees , it may well be that there
is some unsuitability to the post appointed to and staff may not survive
the employers probationary period. Capability is one of the potentially
Fair reasons for dismissal.
An employer is entitled to demand
satisfactory performance from its employees and to that end most
companies have some form of employee appraisal built into their
procedures either formally or informally through Supervision sessions.
Some , definitely the better companies, have a formal Capability
Procedure separate from the Disciplinary Procedure , others adapt the
disciplinary procedure to deal with unsatisfactory performance and some
have simply no procedure whatsoever and in consequence struggle to carry
out a fair process. Some have a procedure and ignore or short circuit it
, and in so doing act Unfairly. Most Capability processes involve a
considerable amount of management time and commitment and there is
temptation to grasp other less troublesome methods to dismiss staff who
are not performing. This can lead to difficulties and inconsistencies in
the reasons given. There is, to a degree, the thought that a non
performing employee should be dismissed -not improved; another
unfortunate consequence of the modern all or nothing culture. To be fair
, in some cases this is a realistic view but not as a general rule.
It is sometimes difficult at the higher
end of poor performance to separate Conduct from Capability since the
employee may evince an intention not to commit to tasks or accept
responsibility to improve , or just simply act in a way that is
inconsistent with the obligation of giving their best to the employer.
Where an employee has been performing a role satisfactorily for a number
of years and performance suddenly drops it is incumbent on the employer
to enquire into the reasons this occurs , particularly if it is
suspected that there may be underlying personal problems or other
extrinsic factors. There may have been a change in Line Manager , a
common cause of difficulty , or some change in the job content or
knowledge is lacking. All of these issues should be addressed before any
procedure is applied.
The objective of any procedure is to
improve , not to discipline however all Capability processes are linked
to the threat of dismissal if improvement is not achieved and provided
the employer has used a transparent system , set achievable targets and
used objective means of measuring success or failure of any tasks set
within the process , then a failure to improve will result in a Fair
Dismissal. Tribunals are bound by authority not to place their own views
on an employer , but merely ask whether an employer has acted as a
reasonable employer and this principle bites deeply on the issue of
capability. A tribunal cannot judge in any employment situation whether
the individual has or has not performed satisfactorily , that is the
task of the management and they are the proper judges of what is
acceptable to them. On the other hand a Tribunal is well able to check
for itself that a fair process is being operated.
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