The performance management process seems to be equally feared by employers and employees, but this doesn't have to be the case. In the latest in a series of articles featuring legal and HR issues, Peter Burgess of Retail Human Resources provides a brief guide on how to get through this process — both as a manager and as an employee.
There is an irrational fear of the disciplinary process both on the part of employer and the employee. The fact is that there will be disputes between management and staff in any organisation. It is the way in which they are resolved that defines an organisation as a good or bad employer.
The law
The law requires that employees not be punished or dismissed unfairly. The problem is, who decides what is fair? Ultimately it is the employment tribunals but by far the vast majority of disciplinary issues are dealt with long before this and rightly so. But what are your rights? What are the responsibilities of the employer?
Employer
Unless the offence is very serious, employees cannot be dismissed without at least two formal warnings being given. These warnings should follow a standard process which:
• warns the employee that any meeting about the issue is a disciplinary matter and may result in a formal warning — in writing.
• allows the employee to have a colleague or an accredited Trade Union official present.
• explains that if disciplinary action is taken, there should be a legitimate right of appeal; usually to a more senior manager.
• includes agreeing the minutes of the meeting with the employee.
• must explain what the allegations are and explain what is required to put it right.
The meeting may also be recorded if both sides know and agree.
Employee
• Your employer should have followed the above process.
• Any disciplinary action to be taken should be consistent with what has been meted out to others.
• You must explain yourself. If you do not then the employer is entitled to take a negative inference from your silence.
• You should work to try and resolve the issue.
• Both sides should act in good faith
General advice
Full details of your rights and responsibilities can be found on www.ACAS.gov.uk where there is some very helpful advice for both sides. But here is some advice on the softer issues that do not normally come up.
Employer
• If you’re working in a large company then there will be procedures laid down by your HR department and you should always approach them first.
• Don’t panic. You are entitled by law to take action to correct errant behaviour. Indeed, good management demands it. The law is on your side.
• Remember that disciplinary action short of dismissal should not be punitive. It should aim to work with the individual to improve or correct the behaviour.
• Try to involve managers who were not involved with the dispute, if you can. It will carry more weight at tribunal if an independent manager took the decision to take action.
• Be measured and calm in your delivery. If you get angry you have lost already.
• Be sure to let the employee know that any warnings do not stay on file forever and hopefully, once given, the issue is forgotten unless the problem occurs again.
• Give the employee time to prepare. If they want more time than your procedure allows, it is always wise to give it to them.
• If you don’t have a stated policy on discipline, you can quite literally download it from the ACAS website.
• Avoid lawyers unless it’s a very highly paid employee or a very serious and complex issue. Lawyers will raise the temperature and whatever you pay in lawyer’s fees will be far more than any award the individual is likely to get. The vast majority of awards at tribunals are well below £10k. Taking a case to trial will almost always cost you £20k+ by using lawyers.
Employee
• If you know you’re in the wrong, admit it and apologise for it. In many cases, perhaps most cases, genuine contrition will cause to the employer to drop any potential formal action. Resentment and biting back will make matters worse.
• Be conciliatory. Try to see things from the employer’s side. Don’t get angry or you will lose.
• If you feel you are being unfairly treated then say so, but say why. Be calm and persuasive, not defensive and resentful.
• Prepare properly for the meeting. If you think your employer is not following the ACAS procedure tell them so, but not in a confrontational way. Politely ask why you are not entitled to the rights that ACAS suggest you have.
• Get a colleague to attend the meeting with you, but bear in mind the colleague is not your representative. They are there to give you moral support.
• Avoid lawyers if you can. ACAS will provide free advice. If the situation is so severe that you feel compelled to use lawyers, find an employment law specialist.
• Go into any meeting with a view to solving the problem, not arguing with your employer.
The overall theme of this advice is that both sides should avoid getting into formal disputes if they can, and they should avoid expensive litigation like the plague. If it does get formal, then keep it calm and polite and go into any meeting with the view that you want to resolve the issue.
Peter Burgess
is MD of Retail Human Resources Plc. He holds an MBA from The London Business School and is a Fellow of the CIPD.
