Performance management / capability Dismissals

“Effective” performance management can be a great way for an employee to improve and address concerns that an employer may have about the employee. It should encourage objective and honest appraisal in a fair and impartial way. However, not all performance improvement plans are fair, and some employees may find themselves ‘set up to fail’, if the improvement plan is unrealistic, or the employee is not given sufficient time to achieve the desired improvement.

Initially the parties should consider whether performance issues can be dealt with informally as part of day-to-day management. If matters are not resolved and a formal procedure needs to be commenced, a capability procedure will usually involve several meetings between employee and employer at which the employee’s performance will be considered, ways to improve that performance are discussed, and agreed performance targets are set and reviewed.

Employees should check to see if their employer has a specific capability procedure, and if they do this should be followed. In the absence of a specific policy or procedure, then a fair process needs to be agreed and then followed.

If the performance of the employee does not improve, then the employee may be asked to attend a formal capability meeting, the outcome of which could be that the employee is issued with a first written warning.
The written warning will usually set out:

• The areas in which the employee’s performance has fallen below required standards.
• Targets for improvement and the timescale in which improvement is required.
• Any additional measures the employer is going to take in order to help the employee improve such as additional training or supervision

Thereafter, if the performance of the employee continues to cause concern, the employer should repeat the process, which would result in further capability meetings, and if the employee doesn’t meet the further targets the employer has set within the timeframe specified, it is possible that the employer could take further action against an employee and ultimately dismiss an employee.

An employee dismissed on the grounds of capability performance is entitled to receive their notice, and any accrued but untaken annual leave up to the date of dismissal. The Employee has the right to be accompanied to any capability meetings either by a work colleague or a trade union representative if they are a member of one, as well as the right to appeal any decision to dismiss.

If you are an employee either going through a capability performance improvement plan or have been dismissed on the grounds of performance capability, contact a member of our specialist employment team to discuss your rights, and what options may be available.