Protected Conversations and Performance Management: How To Handle Requests To Manage Out Staff

If employees aren’t working out, managers can be impatient to move them out of the business. So how can we as HR professionals strike a balance between supporting the needs of your business while managing potential legal and reputation risks?

Making The Job Difficult

Recent reports suggest that employers are increasingly taking more aggressive steps in an effort to move on their employees who are not performing or are no longer required.

In many cases, this seems to be borne out of frustration that the business considers that the normal HR processes are too long and too employee friendly. The employer is convinced that the employee will never work out and does not perceive the need to put them through a process (in which they may have to invest time) to tell them what they already know.

Some employers avoid the use of process, instead just making life difficult for an employee, in the hope that they will get the message and leave – a high-risk approach given the potential for a constructive dismissal claim.

The earlier the issue is tackled, the better

Address underperformance much sooner. It is a minority of cases where an underperformer is a long-serving employee that has seen their performance nosedive. The vast majority have never performed particularly well, they may be given the benefit of the doubt for an extended period after joining and by the time action is taken, the manager involved has already lost patience.

The best approach is a proactive one, catch up with line managers on a monthly basis until it is clear that their new hires have landed well. This allows any underperformance to be addressed almost immediately and before the business has become frustrated.

Fit for purpose

Another measure a business might take is to consider whether or not their performance management processes remain fit for purpose.

Most are designed with the aim of “turning around” the underperformance and give the employee significant amounts of time to do this. However, while any performance management process cannot be a sham one, most processes can be rebalanced to help employers move far more quickly towards an exit. Have realistic performance targets in place, coupled with feedback and this should usually speed up any exit discussions whether formal or informal.

Different performance structure for first two years

Another consideration is the ability to exit employees within their first two years. Few employers have a different performance management process for those with less than two years’ service and where underperformance occurs, it will place them in the same process as someone with ten years’ service. In most cases, this is unnecessary. Employees within their first two years’ service are unable to claim unfair dismissal and as such with some exceptions, in many situations, dismissing an employee who does not have qualifying service will be low risk (professional advice should be sought first). A clear policy in place that explains that no process will be used in instances of underperformance for those employees with less than two years’ service, can help to mitigate against this.

Protected conversations

For those employees with more than two years’ service, the ability to avoid process is more challenging and this is where the use of protected conversations can be helpful. These allow the employer to raise the possibility of a termination without the risk of a claim.

They can work well in many cases, but should be used with care as where the employee says “no”, it can often make any subsequent performance management process more difficult, given that the employee knows there is an intent to exit them from the company.

As you can understand, there are often proactive steps that HR professionals can take to ensure that they are helping the business deal with their underperformers. Some employers may still look for a more aggressive approach, but the majority will appreciate the need to balance the longer-term risks of a claim or damage to their brand with their desire to remove someone from their business.

If any of these issues chime with you and you would like further advice, please get in touch with us at [email protected] or call us on 01386 751740.