Managing performance: an employer's guide - Guides - Gateley

Managing performance: an employer's guide

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Paul and Gearalt from our Employment Team look at Managing Performance, including when you need to start an official process, who should be informed and how best to document it.

In this podcast (47 minutes) our Employment partners, Paul Ball and Gearalt Fahy, take a look at the key steps you can take to manage poor performance. Paul and Gearalt share their thoughts on what you can do to prepare and what needs to be considered: 

  • How should poor performance be addressed?
  • What are the key things to consider when attempting to establish the cause?
  • What' the difference between a formal and informal performance review?
  • What's the best practice for documenting performance management activity?

Host: Talking about managing performance, and when people think about that, they generally think of poor performance, are there any tips for effectively managing poor performance?

Gearalt Fahy: I think the management of performance is something which should be ongoing and is best done as part of an ongoing process. Effective management involves telling someone when they have done something right just as much as it does when they've done something wrong. To my mind, it's all about standards.

As the employer, it's your business or you're a manager in a business and the business has decided that it does things in this particular way, at X, Y, Z limit of, "This is how we do things." Well, if that's the standard and that standard is clearly communicated to everyone, then what you're asking is that the employee complies with their side of the bargain. So the relationship of employment is simply, it is a bargaining position where the individual agrees to come to work and to do what's expected of them and what they're told and in return for that, they get well paid.

Now it's only where it comes to management of any issues within that that you tend to see issues. So when it comes to performance, if someone isn't meeting your standard then you need to tell them. The way to approach that is informal, if they don't respond to that, you may need to remind them that they're not reaching your standard. Does this always happen? No, it doesn't. What you tend to see is that poor performance is recognized, is acknowledged, it is rarely tackled at an early stage.

Paul Ball: I think that when you're dealing with performance issues, there's a couple of things that I would flag up as points that will resonate with most employers. One is that a line manager or somebody with people responsibility will find tackling the poor performance as the absolute worst part of their job. But it's an essential part of their job.

They're in a role where they're managing people. That isn't just managing people who are doing well, it's not just managing process, it's making sure that everyone is working and who reports to you, is doing a job effectively. You or the people you report to will be able to define or ought to be able to define what effective performance actually is. You won't necessarily find it so easy to put your finger at exactly what it is this individual is or isn't doing, that means that they're not an effective performer.

But that's one of the keys to it, being able to say to them, "You aren't doing this, this, or this." Or, "You aren't doing this. That's not the standard expected." A benchmark of what is expected is this, and this is not what you are achieving. And I think many businesses find it difficult to be able to pinpoint, they know that somebody's not performing well but pushed, they couldn't really say what the shortfall in performance was.

That's one tip which is, making sure you can at least give examples of what it is that is ineffective. the second point is, then having the courage to tackle it in the right way, and that means informally to begin with, and not getting stuck in a cycle of dealing with it informally until it's too late. And that's something that we see happening a lot with the issues that come to our attention. Don't you think?

Gearalt Fahy: Yeah. I think it's certainly one of the most common difficult issues to tackle because it's personal, and it involves a level of confrontation. It's easier to say, and it's easier to think about having the conversation. It's very very different actually having the conversation.

Host: Yeah.

Gearalt Fahy: And you see it in all ways but really it's about being very clear. I talked about standards, and how you can ... You were making the point about how you can decide whether or not somebody's performing or not. One way to do that is by looking at what they're supposed to do. And an easy way to do that might be by reference to a job description. If a job description doesn't exist, write one. Prepare a list of the things that you would expect somebody to be doing in that role, at their level of seniority or at whatever it might be. And carry out your own assessment as to where it is that individuals falling down. But chances are it's across a number of areas.

Host: But if all you're saying is that sometimes it's hard to work out what the cause of poor performance is, does that mean it's hard or it restricts how you look at how improvements can be made?

Paul Ball: It probably goes a little bit earlier than that even. It's not just that difficult to identify the causes of poor performance, it can be difficult identifying what the poor performance actually is before you then look at what the causes are. And even if you have identified that there is poor performance, starting to address it in the right way to help see an improvement.

So from my perspective, we see a number of common themes that come out when clients are coming to us with performance related type queries. One of the most common ones is a perception the person isn't doing very well, but with no evidence to back that up. And that's where things like the job description that you talked about, are very relevant, details like training records are relevant, evidence of recent promotion without support is relevant, statistics, productivity rates, error rates, all of those kinds of things are very relevant.

But often what comes to us is just not as effective as other people and they know they're not as effective. That's not really enough to start a process to enable you to manage someone's poor performance. So the evidence bit is really important. And then I guess the second bit before we get onto causes, is actually having the courage to have that kind of discussion with an individual in anything other than an informal way, because it seems confrontational. I think as managers, I hold myself up to this saying, tackling performance issues is something that I would find incredibly difficult.

Host: Why? Why do so many people say that though

Paul Ball: Because I think it's quite easy to say to somebody, "Good job. You're doing really well." But to turn around and say, "You know what? I really wasn't so impressed with this, this, and this. And you need to pull your socks up." Some people are great at that. I think for most people it doesn't sit that comfortably. You get to the position you're in because you're good at doing your job, not necessarily because you're good at managing people, but that's something that comes with the responsibility of doing that.

And I think people say, "Well, I've done it. I've done it. I've done it." They may have done it in the sort of one to one brief discussions. "You know next time, could we do this, could we do this?" Without actually being, "You know what? If we don't do this, it's gonna become a bit more serious." And it's that flip from coaching, informal guidance to through to, "I've had enough of this and it needs to improve." And switching it into a more formal process, that I think that that's the hardest bit for many businesses.

Gearalt Fahy: I think also, it's leaving it until it's too late. And by that, I mean that when someone comes to you, it tends to be that they, in their own mind, have formed the view that that person isn't up to it and they want to address the issue. So you ask the question as to what steps they've taken to address this with the individual. And they can give you a big pile of things that they haven't done but they haven't raised anything with the individual, so the individual has not been tackled.

And what that then means is that you have to say to the employer, "Well, you have to identify to the individual where they're falling down, what the level of performance you expect is, what is your standard, why are they not meeting it, and you've most importantly have to give them the opportunity to improve."

And what that then means is that you have to give time. And it's the hardest advice to give because it's the last thing that an employer typically wants to hear. Because at that point they want to know how they can say in the context of a disciplinary investigation, how they can just do the investigation and reach a decision that somebody's incapable and that be the end of it. A couple of weeks, all done.

It's not as easy as that because of this key point, which is that an individual has to be given the opportunity. Because God forbid they may well turn it around and their performance may improve. That's the purpose of performance management. It's not with the view to sacking them because of what you perceive to be their poor performance.

Host: Something you touched on Paul, and I just want to expand on this, moving it from an informal to a formal performance review, is it obvious when that happens? Is there a point that it happens? Could it be a point where it's too late or you've missed that chance and you've gotta kinda jump in and it is a formal performance review.

Paul Ball: I think it, we've said this quite a few times in these podcasts is that it depends on the circumstances. But there are a few points which are if you are at the point where you're thinking ... And you're the manager, you're at the point you're thinking, this really isn't good enough, what this person is doing." And they've had several chances. But you haven't ever put anything in writing to the individual as a follow up from a discussion. And you've not said, the next stage may be that we have to start a formal process which would involve a review period, setting you performance improvement targets, and so on." If you haven't don't that, you can't jump straight into the middle of a formal performance process.

There needs to be a point where the individual knows that there is a concern and if there's no improvement the next stage will be, not may be, will be a more formal process, a more formal approach that you're gonna be taking to address matters.

And it's easier for the manager to be able to do that if he or she is able to say, "Look, we've spoken at least once about this, and just as part of coaching or just our weekly one to ones, and I've mentioned this and I've mentioned this, and the last few meetings I've spoken about figures and things of that nature. But I have to be honest with you, I have been expecting to see an improvement, and I'm not seeing anything."

"I want to know why that is, because if I don't see an improvement then I'm gonna be coming under some pressure from people that I report to do something about that. And what that will be would be a more formal process. I want to avoid that but just so you know, that's where I'm at. I don't see any reason why I need to be at that point but you need to apply some diligence on this, this, and this. Now is there any point that I've said that are unclear? Is there anything that I might be able to do that would help us avoid being in this situation?" But that's just a brief discussion.

Host: Yeah.

Paul Ball: And it could be followed up briefly in an email. And there is no improvement, the next time something goes on you can then say, "Look, actually now having done that and all, that email was the line in the sand. That's the point where I'm having to switch into a more formal approach." Now, who decides that? It's the manager that really decides that. Because it's the manager that's got the issue with the individual's performance, it's not the individual.

And that's up until they are told in no uncertain terms and it is documented that things are becoming a cause for concern, they can reasonably say, reasonably, legitimately expect to think, "I'm not doing anything wrong." Even though you might be thinking they're absolutely appalling unless you've actually put something in writing about that, it's gonna be difficult for you to justify a decision that "I've had enough of it. Enough's enough and this person's not going to reach the standards expected of the role."

So it is really the manager who should make that decision. Now just very quickly, employers have capability procedures specifically for a reason. Because they expect managers to deal with these kinds of things and that should provide a level of guidance about what that, in business, expects those managers to do when they're dealing with performance issues. And that's really the role of also HR teams, to help managers go through that particular process.

So if any lack of certainty about what you should be doing to manage poor performance, I would go to HR and go to a capability procedure that the business has as a reference point. And making sure that you can then say, "Well, I've done this. I've done this, and here's proof that I've done these things and why I'm now going into the formal process."

Gearalt Fahy: Yeah. Informal processes make sense for a business is, for a business's ... They're not essential in terms of managing the risk of claims that might come in the future, it's just sensible and good practice to raise issues and to tackle them before they become bigger issues. And if they're not tackled in that way, then it's not the end of the world because really what you can do is simply begin by having the very frank discussion and moving straight to a formal process.

So there's no rule of law that says that you need to begin with informal and then move to formal. You could simply have the chat or not have the chat and then simply begin by saying, "We're not happy with your performance. We now need to address this. We now need to explain to you where we think you're falling down. This is the level of improvement you need. We need from you, rather. This is the beginning of a formal process and you go from there.

Host: Talk me through a formal process then. What does it look like?

Gearalt Fahy: A formal process looks a bit like what I've just said, in that you identify the issues where someone is, in your view, not meeting the standard. You tell them that and you tell them that you expect improvement and that you're going to give them the opportunity to improve. That involves a period of time over which you're going to give them the opportunity to demonstrate that improvement.

The more difficult issue always in performance cases is, how long. How long should you give someone to improve? The way that I like to think of it is this, it depends on what the business cycle is for that individual and what they do. Or in other words, how long will it take the manager to assess that individual doing those elements of their job or their job in its totality. So that could be a month, it could be three months, and it really depends on their level, complexity, really just what the job entails.

Paul Ball: Yeah, and what they have or haven't been doing.

Gearalt Fahy: Exactly right. So that's the period of improvement. Monitoring and it's about assessing how they are getting on. If they are making progress, then you let the period run its course. So let's say we're working to a period of a month, you let it run its course and you then meet with them in a months time. At that meeting, you either say, "We're really pleased, you have shown improvement. You just need to be aware of this and that, but other than that we're happy with where things are. Now it's a matter of maintaining that and keeping that on track."

The alternative position is that there hasn't been the level of improvement that you expect and it involves upping the ante. To simply say, "This is not good enough. Yes, there has been some improvement in these two areas, but we've got another list of ten things that you just simply aren't doing. We are going to continue to monitor your performance. I do have to tell you that if we don't see the level of improvement that we expect in the next month period, then we will be having a formal meeting and one possible outcome could be dismissal.

Host: Right.

Gearalt Fahy: So it's about walking them through the process so that they know that they are under review. So you may be familiar with a probation period. It's like a mini probation period, it's us seeing whether they've got the capability to do the job. If they have, great. If they haven't, then it may involve dismissal.

Host: If you've decided to go forward and it's a formal performance meeting you're gonna be going into, how do you prepare for that? How do you arrange it? Talk me through the process there.

Paul Ball: Okay. There's a couple of elements to this. One is, and I think the most important bit is, having something you can fall back on as evidence of why it is the meeting's taking place. So what it is that the individual has been doing poorly or not been doing in comparison with peers or otherwise. So we talked before about data, statistics, or the job description, and things like that. So having that is really, really important.

I think the next element is about your mindset and what you say to the individual about why this meeting's taking place and what the perks of the meeting are going to be. Because as employment lawyers, we know that if you're in a formal performance process, one potential outcome could be termination of employment some way down the line. But the purpose of the process internally is not to lead to the termination of the individual's employment, it's to get them to improve. It's a performance improvement process.

And so the approach that you ought to be taking if you're dealing with this is, "What can I do to move you from where you are to where you need to be? What can you do to move from where you are from where you need to be?" And I deliberately split it up into two there. So what can we do? What can you do?

And that involves asking a question of the individual of, "Do you accept that these concerns I've got are valid and can you think of any reason why you are where you are?" Particularly if the individual has previously been at the right level. So they might be trying to identify underlying causes for a reduction in performance. And it could be promoted above their skill level without the level of training that they might need, it could be family issues, whatever it may well be. It could be other people being off sick and people being overworked. Asking that and establishing that.

But the second part of that is also then asking, "Okay, bearing in mind where we need you to be, is there anything that we think we can do that will help you get there. Because remember this is about getting you to that level. It's not about getting rid of you, it's about getting you to that level."

So if you approach the meeting and your approach your preparation's meeting in that mindset, it should mean that what you're then discussing with the individual is, a little bit about their shortfall in performance, a lot more about what they need to be doing to display the improvement.

So we've talked about review periods of a month or up to three months I think, like that. That will allow you to think about, "Well, what is it? What would improvement look like? That would then mean that we stop this process at the end of that review period. Because that's what I want to achieve. I don't wanna be here. This is horrible for me to do. I don't wanna be here. I wanna get you to perform to the level. So what would that improvement look like? And what would you need to get to that particular improvement? So it's about discussing with the individual and trying to get their agreement to particular objectives that would see that you've got measurable success and an improvement."

Host: So supportive?

Paul Ball: Yeah, exactly right.

Host: So when you talk about that, that's just one of the roles of the manager is to be that kind of supportive person as you're kind of detailing what the plan is.

Gearalt Fahy: It's good management. The thing that I liken it to is the investment that you've made. You've invested in this individual from the outset. They may have been with you for a long time, they may be very experienced, you may have put them through training, and all of these things. And if you're not prepared to invest what's needed to deal with a failing, then it's very shortsighted.

So if you were to compare it to a piece of equipment if you invest in a piece of equipment and it was to break down, well your first thought wouldn't be, "Let's ignore it. Let's just deal with the fact that it doesn't work and persist with that to the point where you would then say, "Well, that needs to go in the bin. We need to get rid of it." What you would look to see is whether or not that can be repaired. And you would take all of those steps and if it can't be repaired then it may need to be replaced. But first of all, you would try and diagnose and then put in place something that would try to get it working again.

Host: How do you go about conducting a formal performance review meeting? Put me in that room, Paul.

Paul Ball: Well, I think the starting point, aside from all the pleasantries of course, the starting point is, "The reason we're here is because I need to speak with you about some concerns that I've got about some of the bits and pieces of work you've been doing for us for the last few weeks, few months, whatever the case may be. And the reason I'm sitting you down in this context is that you recall we've spoken about this more than once in the past and I haven't see the kind of improvement that I hoped for. And so I wanna sit down with you and try and identify what's going on, why this is happening and more importantly, what we can do to improve the situation.

And the reason I'm doing it in this context and I'm sitting down with you is because I do need you to realize that this is a slightly different kind of process to what we followed. Now it's away from the workplace, this is more formal."

And the reason for that is because if I don't see the level of improvement that I think is reasonable to expect, then this process in line with how we'd follow this with anybody else, could lead to us saying, "We don't think you've got the capability to do this particular job and we might have to remove you from the job, and that might mean termination of employment. That's not something I wanna focus on. But I want you to realize that this is a process that could lead to that. And the reason I'm doing that is that I think it's really important that you realize that what has been going on in terms of your work hasn't really been at the kind of level that I need. So let me give you some examples."

Go through an example with the individual, ask for their response and whether they can explain what happened on that particular occasion, whether it's an explanation that equipment might've broken, it's out of their control or otherwise. And be seen to be keeping notes of what they're saying. Okay. So on each example, keeping notes of that.

The fact that you're keeping notes is something that in most cases would make the individual realize, "This is slightly different. It's a bit more serious." That's exactly what they should be thinking. Once you've gone through those examples, I would be thinking, "Okay, what would good performance look like?" And describing that to the individual, explaining that to the individual.

So then you can identify, there's the gap. You can see as I'm talking to you, I'm actually moving my hands saying there's the gap. I know people who are listening to this can't see it. But there's the gap. And the idea is, you wanna try and bridge that gap somehow. What will need to be done for that? What can you do, what can we do? Is there training we can provide you with? What kind of timescale would be reasonable to see an improvement?

Some of them will be immediate. Some of their shortfalls will be things that you expect an instantaneous improvement, others might be something that needs training before they can be implemented. You as the manager, should be able to decide and know that that timeframe is. But we've talked before about reviews of say four, six weeks.

Now what you need to do is be saying to the individual, "I'm setting this review, and what I would expect you to work on are these things, I'm gonna write them down so that it's an objective that you can see that I'm gonna measuring you against over this period. I'm gonna make sure they're reasonable, they're realistic, they're ones that we will know whether you've achieved them, I'll know whether you've achieved them, we can measure them, etcetera. You've heard the phrase, "Smart objectives", that' what we're talking about here. And at the end of that period, we're gonna have another sit-down and see where you've got to. Do understand?"

And the fact that you're talking in this kind of manner and that you are being seen to document these, particularly writing a list of particular objectives, all of this I think is reinforcing the formality of it. Two things that need to come out of that meeting. One is, confirmation in writing to the employee of what you've discussed and the objectives you've set and that there'll be a review at the end of that particular period.

The second thing is, making sure that review takes place. It's your responsibility to make sure that review takes place. Your responsibility as the manager I mean, to make sure that that review then takes place and that you do do it, whether they've improved or not you do that. So that's a potted summary of what that kind of meeting looks like.

Host: When you've agreed on a plan or you've made a decision at the end of that meeting, who do you tell about it? How do you tell them about it? Who's involved in this now?

Paul Ball: At this stage my thinking is, it's between you and the employee but you CC HR if there's an HR team, into an email that you're sending to the individual. So the individual receives from you a summary of what you have discussed, more importantly from you, a summary of the objectives that you're gonna be measuring and reviewing their work against over the review period. And they know that there's a diary appointment four or six weeks down the line which you're gonna be talking about how they've done over that particular period in question.

Gearalt Fahy: Yeah. I think that's right. Because the dialogue is typically between the manager or the supervisor or whatever the position but they're dealing with a direct report. So beyond that, I can't think that anyone would need to be involved. It's essentially a confidential process between the manager and the individual.

Host: Going forward then, let's skip forward a week or three months or six months, whatever it's been determined that the review period should be. Two things are gonna happen, either they've got to have improved or they've not got to improve. What happens in those two meetings? Depending on the outcome.

Gearalt Fahy: Well, at that stage we're at the end of the first review period, so you're right in that we've reached a fork in the road. All is well in the world and they have improved and with a little bit of refinement, they're back on track. That's your preferred objective. The alternative position is that someone has not met the standard, then you're effectively going through the same process again that Paul has described.

Gearalt Fahy: The meeting wouldn't be dissimilar but it would be reviewing their performance within that review period. So it's probably you're talking about a more contained period of review and it's really with a view to them saying, "You've been warned. This is the last warning we're going to give you. You now need to demonstrate that you can meet our standard and if you cannot do that, then we will be having another conversation and that will be the final conversation.

Host: Okay. But there's nothing hard and fast that says that has to be the last time. Theoretically, you can keep on doing reviews.

Gearalt Fahy: You could but I can't think that it's going to help you. Unless I suppose in a coaching or a counselling capacity, where you would continue to work with someone. So you could end a formal process but continue to counsel or mentor or whatever it may be to make sure that they stay on track.

Paul Ball: Yeah. I think I agree with that. I think to answer your question specifically, yes, you could do that process more than once or twice as the case may be. It's entirely you who decides that. But you then run the risk of being trapped in a cycle of formal in a way you may have been trapped earlier in a cycle of informal, informal, informal.

It's really again, the business that decides, or you that decides but there must come a point where if you haven't seen any evidence of improvement or sufficient improvement, if there's still a gap between where you need that person to be and where they actually are, and you have asked about and tried to identify remedial actions that you the business can take, and you've implemented them and there's still a shortfall.

You've tried to identify with the individual, whether there are any underlying causes and you've tried to address those or help them overcome those if you've done all those kind of things, what do you gain by continuing to repeat that kind of process. Yes, you could do. And you might do that for somebody who'd got really length service or there appears to be background circumstances that explain what's happening right at the moment, but you don't have to.

Gearalt Fahy: I think it's a point that you would typically address at the beginning. And one way of addressing that might be to provide a longer period over which they could demonstrate improvement. So you could have a short period because you think that's enough, or as Paul said, if somebody's got long service, you may give them more time.

 At the end of that review period, there may be a good reason as to why you could extend that review period. For example, they may have been absent, there may have been a pressing business need which took them away from doing their day job and doing something else. So there may be a reason to extend it. I think extending it or having a longer period is preferable to having more review periods.

Host: One of the things and you both said it, that this process is about improvement, but you've both mentioned termination. You've both mentioned the person is out of a job. When do you arrive at that? Is it after you've done two reviews, you've given them the chance, they've not improved? Is that when we start talking about it?

Paul Ball: Well I think the starting point is, you look to see whether the organization has got any specific processor capability procedure, and that may set out the number of review processes that that organization thinks is acceptable. That's the starting point. If you haven't got something like that, how Garrell just explained it, with the two processes I think is a fair and a reasonable one. It comes back to the organization broadly decides.

But what the organization has decided needs to be fair and reasonable to the circumstances of the case. Now what's fair and reasonable to the circumstances of the case will be influenced by things like the length of service of the individual, their record of service, the quality of the work they've done in the role, and whether there's been a deterioration for no obvious reason, an opportunity to improve where there've been no improvements as opposed to some improvements. Or whether the person may have, for example, moved into a role more recently and struggled to adapt to a more senior role when previously they were performing effectively.

These are all the kind of factors that you should really throw into the mix in deciding at what point it's reasonable to consider termination of employment. The overlying question when you're considering termination is, "Have I given this person what I consider to be reasonable opportunity to improve their performance to the standards that we expect of somebody in that role or not?" And if the answer to that question is, "Yes, I have. And they're still not meeting it." Then dismissal is something that can be considered.

Gearalt Fahy: As long they know that that's a potential outcome.

Host: When do you make it known to them that it's a potential outcome? From the very beginning when it's informal or only when it switches to formal? How does it come about?

Gearalt Fahy: I wouldn't be talking in terms of dismissal at an informal stage certainly. Even at the outside of a formal process, I may not be talking ... I think Paul has suggested that you could. Yes, of course, you could, I may not be because it comes back to having that willingness to work with the individual to be supportive.

If at the beginning you're talking about the dismissal, it does perhaps suggest that you see an end position. Whereas if at the beginning you're talking about someone who is not meeting the standard, then you would go through that process and essentially that's a warning. The second stage is, like a final warning in a disciplinary context. And that final warning being, "If you don't, the next stage will be dismissal."

Host: And is that something that would come about in one of the review meetings? Or is that a separate meeting where you say, "Okay, this is where the termination's gonna happen,"?

Paul Ball: So the way that I envisage this typically happening and thinking back to what Garrell's just been saying about the second review process saying, "This is your final warning," broadly. The next stage would be, one more review period. Where we're wanting to see the improvement because we've told you this is the last review period.

And at the end of that review period if there hasn't been the improvement, the meeting at the end of that review period is the one at which termination takes place. So in advance of that meeting, the individual need to be informed that one outcome of that meeting could be the termination of employment. And that's something that would need to be put in writing to the individual so they know in advance of the meeting that that's what one potential likely outcome.

Gearalt Fahy: So you've told them at the beginning of that second review period that is a potential outcome. You've reached the end and you're inviting them to the second meeting, and what you're saying is that no surprises, one potential outcome because you are giving the individual to an opportunity at that meeting to explain or I suppose to effectively say why you shouldn't terminate their employment?

Host: I guess one of the dangers that came into my mind then, particularly in smaller businesses, is for the opportunity for I guess you would describe them as, informal performance reviews. Where you could be meeting someone, you could be next to someone having a coffee, and it's just the two of you in the room and you could say, "So is everything going okay? Is my performance improving?" Is there a particular way to deal with that? Do you have to kind of direct them to, "I can't talk about this now,"? How would you approach that?

Paul Ball: Well if that kind of discussion took place when a formal process has already started if that's what you mean-

Host: Yeah.

Paul Ball: So if a formal process has already started then there's nothing to say that having discussions throughout the review period about how the individual has been doing since the review started, is fine. But I would always then say, "Look, so far I'm happy with such and such, and such and such areas but I'd still think about this and this." We'll pick up on this definitely at the end of the review period.

Paul Ball: But I think what your question also then raises is a good point and it's worth our mentioning which is, it shouldn't just simply be a case of reviewing it at the beginning and then at the end. It really should be something where if you are seeing no improvement whatsoever or a deterioration, you can bring the review period to an end sooner if you wanted to. But equally, if you're starting to see some improvements, then tell the individual that you're seeing some improvements. The idea is that you're keeping some records of what it is you're then gonna be discussing when you're having the review meeting at the end.

Host: Can you bring that review period to an end even if that's gonna result in termination?

Gearalt Fahy: Yes. Because if it's at such a poor state, if their performance is so far below the level that it's pointless in continuing with the process, then yeah of course.

Paul Ball: Yeah, and I think that's right. And particularly if you have made it clear that "We're at the stage where I'm needing to see real signs of improvement and a real commitment from you to be working on these things. Because if I don't see them at all, that we may end up having to cut the review period short." So if you've alerted the individual to, "Look, I'm trying to use language too that makes it clear, this is quite serious now." And the next stage may well be that we decide you haven't got a future in that role and that may mean, you haven't got a future employment with us. Then, by all means, you can do that.

Gearalt Fahy: Yeah, so if you looked at one end of the spectrum, you've got no improvement whatsoever halfway through the review period, and someone isn't showing any signs, all the way to doing really well and you'll have somewhere between. So it depends on how close they fall to the first end of that spectrum.

Paul Ball: Yeah.

Host: If the decision is reached to terminate the employment of the individual, who gets to know about this? Who do you tell about this? How do you communicate?

Paul Ball: It would be at the end of one of the review meetings. So the final review meeting that we've already talked about. And in advance of that review meeting, you ought to have told the individual in writing that based on that performance during that review, and since the formal process began, they need to be aware that you still have concerns and that one outcome of that meeting could be the termination of their employment.

But you won't rush into a particular decision. You want to speak with them to find out their thinking about their performance, etcetera. So the first point is you'd be communicating it to the individual in that meeting. But only after you've just gone through the review that we've talked about, of what they've done over the previous few weeks.

And then I think what the manager needs to say is like, "I'm reaching the point where I don't think you are going to be able to do this job to the standards that the company expects. We've done this process now, this review process, two or three times and I'm not seeing anything like the level of improvement that I'd hoped. I've tried to offer support to the extent we decently can. I've tried to find out what the reasons for this are, and we're not seeing the improvements. So I've reached the point where I'm not convinced you really can do the job to the level that we really need. I need to have an adjournment while I think things through. But I have to tell you that one possible outcome may well be that I decide that I terminate your employment. Now before I do that, I want your thinking on whether you think that would be a reasonable decision. And I'm also going to ..."

And this is the point that I think is sometimes missed, "I'm also going to consider whether there are any vacancies elsewhere within the business, that might be ones that I believe are suitable for you." Now that's something that will be perhaps of relevance where somebody has been an effective performer and has moved into a more senior role and struggled.

Now going back to their former role might be something that is achievable and could be offered to the individual and they may accept. So that's something that you could discuss with the individual at that point in time if there are any available vacancies. Adjourn, and I think it'd be quite a brief adjournment is what we're talking about here, not overnight or anything, relatively brief adjournment.

Gearalt Fahy: No. Because I think it's rare that the individual's going to be able to say anything at that final meeting that's going to change your opinion.

Paul Ball: I agree. So it's just an almost a final sense check. A time away from the individual you reviewing everything that's happened to date and a final sense check of, "Does the individual deserve one more chance? Is it appropriate to extend the review further? Or is it at the point where actually you're not gonna get the improvement even if you were to do that? In which case, have you reached the point where termination of employment is appropriate?

So then it would be reconvening the meeting and explaining your decision to the employee. And much the same way as if you were making a decision in a disciplinary context or a grievance context, it would be not just saying what your decision is, but also explaining why you've reached that particular decision. And some of that will be recapping what you've already said to the person earlier in the meeting but I would still say that if the decision is termination.

That would be dismissal, usually with pay in lieu of notice. But dismissal usually would effect from that day with pay in lieu of notice. But then remember, the individual has the right to appeal against that decision and giving them the right of appeal and explaining how the letter confirming your decision will set out how they can appeal. You don't follow that up in writing and the only other people that really would need to know would be human resources department or your line manager.

Host: How do we go about documenting this then, the formal performance management process, irrespective of the final outcome? How do we do that?

Gearalt Fahy: As with the other processes that we've discussed in separate discussions, it's about ensuring that you have the letter confirming the outcome and working backwards from there, that you have notes of all of the meetings, letters inviting the individual to prior meetings, perhaps letters confirming the outcome of prior meetings, any evidence that you've relied on in terms of empirical data, statistics, or anything like that. And it's really about making sure that you have all of that in one place and centrally held.

Host: Is there a lifespan for that documentation? Is there a period of time you should be keeping it for?

Paul Ball: Well, the sensible thing if you're keeping documentation about performance concerns or disciplinary processes, whatever it may well be is, you need to keep them for at least the duration of time that you might face litigation. I think a sensible position and most employers would have document retention policies that would say keep employee records for up to six years post-termination of employment. Because that's the deadline for breach of contract claim, that's way more than the deadline for most employment tribunal claims. But that would be the period of time you would tend to keep those kinds of documents for.

Host: This all sounds quite convoluted, incredibly time-consuming, is it all really necessary?

Paul Ball: To answer your question, yes, it can take quite a long time to do it from beginning to end. From the start of a formal process through to the end and a decision to terminate employment, you could be talking four or five months in total. With meetings within that every month or every six weeks or so and constant monitoring of performance. So it can be quite time-consuming.

I think in reality, the number of times that you would have to go from that process, from beginning to end, actually is probably relatively small. And I think part of the reason for that is either the process is successful and moving from informal to it becoming formal will be the sort of kick up the backside the individual needs to improve their performance. And they will not have realized maybe that their performance is giving cause for concern, once they realize, they will turn things around. That's one potential outcome.

The second potential outcome and perhaps the more common outcome is, the individual doesn't feel that they're necessarily going to be able to improve, they volunteer to you that they're doing everything that they can and perhaps they don't see they don't see they think they can improve, and discussion moves off in a different direction. Or without discussing this with you, they realize that a process is likely to end in the termination of their employment, that's not something they would want, and they start looking for other work elsewhere and resign. And that's not an uncommon response.

So I would say that in the majority of the situations that my clients have raised with me, where there's a need to go through a formal process, I would say a very small percentage actually result in that process concluding the termination of employment being imposed by the employer. So it can take a long period of time but the vast majority, it doesn't take all that amount of time.

Gearalt Fahy: I think what I would add to that though is, it's this point of investment again. And how you regard the investment that you've made in that individual. Yes, it is time-consuming. Yes, it is convoluted. But the law and good management aren't two different things.

The law is built around good management and you have to, as well as looking at the individual as to why they failed, you've got to look at yourself as the manager or your own organization, "How have we failed this individual? If this was an individual perhaps that performed well for a long period of time and somewhere along the way he's lost his way, could we have to address that at an earlier point? Could we have put in place training? Is there something we need to learn going forward?"

So I think it's easy to point the finger. I think it's even harder to look at your own processes and your own management and that's something that's certainly worth doing.

Paul Ball: Yeah, I'd agree with that. And that just reinforced what I was saying Garrell, which is about the aim of the process is to secure the improvements in the individual's performance. And conducted effectively, it won't just be about pointing the finger at their performance, it will be identifying what the shortfall is, and why it's happening, and whether you or they perhaps could've done something and can now do something that will turn things around? So if approached with that kind of "Can do" mindset, the outcome more times than not ought to be the improvement.

Gearalt Fahy: Yeah, the objective should be to find that they're capable rather than incapable.

Paul Ball: Absolutely.


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