Webinar: Managing poor performance

Darren Newman

Effective performance management is a central part of a manager's role. When carried out well, it enables organisations to get the best out of their people and achieve business aims.

Managers can nevertheless struggle to harness the benefits effective performance management can reap. HR has a role to play in providing the support and guidance that managers need to have the right conversations with their team members and handle tricky issues.

In this webinar, Darren Newman helps you realise the value of managing poor performance fairly and within the law, and tackles some common challenges including:

  • providing negative feedback constructively;
  • identifying and acting on barriers to success; and
  • progressing through a process when feedback does not work.

This 60-minute webinar includes a Q&A session.

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Laura Merrylees: Good afternoon everyone, and welcome to the XpertHR webinar on managing poor performance. I'm Laura Merrylees, senior employment law editor at XpertHR, and over the next hour we'll be guiding you through how to manage poor performance successfully, something that we know from the number of you joining today's webinar is a continual challenge for HR, whether that's because you're supporting line management in a performance management process remotely or because you have hands-on involvement.

One thing is, however, certain: ignoring the problem and not tackling it at the time will invariably make it worse. So today we will be exploring head-on the common challenges and issues that can arise in performance management and how these can be overcome. We'll also be responding to the many questions you've sent in. In fact, we're running an extended Q&A session today with our guest speaker Darren Newman, so do please keep those questions coming. You can do that through the Q&A pane on the left of your screen. We'll get through as many as we can but if we aren't able to answer your question today we'll answer as many as possible on XpertHR so please do keep an eye out on the site.

So a little bit more about Darren now. He is an employment lawyer with more than twenty years' experience. He qualified at the Bar back in 1990 and has extensive experience of representing both employers and employees in the employment tribunal. Darren has provided employment law training to major government departments, commercial organisations, local authorities and public bodies. So Darren, without further ado if I could hand over to you now to ask you to kick off today's webinar.

Darren Newman: Okay Laura, thank you very much and thank you for having me. And hello everybody - thank you for joining. Yes, as Laura says we're going to be talking about managing poor performance. I should say right at the outset that I have an inherent bias when I'm talking about this, that I talk about it through an employment law framework and I talk about the legal risks that you come across when you're managing poor performance. And I make no apology for that because it is, frankly, the sort of thing I know about. But also I think - and this is very much my theory - that the principles that employment law wants you to follow, to make sure that you handle poor performance issues fairly, are also the principles that it is a good idea to follow to make sure that you handle poor performance effectively. That's very much my theory. See if you think that holds up as I go through what the legal principles are.

When we talk about legal principles we're talking about the risks of various kinds of claims that can be brought. You could have a breach of contract claim, unfair dismissal claim, discrimination claim. When we're looking at poor performance it's very much unfair dismissal, I think, that is at the centre of things. We'll take it as a given, shall we, that it's very important that when you're applying principles around poor performance you don't do that in a discriminatory way and everyone is treated equally, regardless of their protected characteristic?

But I want to concentrate in just a few moments, before we go to questions, on issues around unfair dismissal. And I think one really crucial point about unfair dismissal or that's really relevant to the issue of poor performance is that there's a two-year qualifying period. So if you're going to dismiss somebody because you don't think they're very good at the job, you don't think they're capable of doing the job, capability is a potentially fair reason for dismissal, but they can only bring a claim if they've been in continuous employment with you or an associated employer for two years or more.

And I think this is one of the reasons why we don't get an awful lot of litigation that's specifically about capability. If we look at the leading cases on this - and I'm not going to go through cases in this presentation, but if we do - we find that they're all pretty old. They all come from the late '70s, early '80s. It's not something that's regularly troubling the Court of Appeal nowadays.

And I think one of the fundamental reasons for that is of course you've got two years. So if you recruit somebody and it turns out that they're not very good, that recruiting them was a bad idea because they're not very good at the job, then you do have two years to get that right before the question of your reasonableness kicks in, when you decide not to employ them anymore.

So somebody who's claiming unfair dismissal because they've been dismissed for poor performance has presumably had at least a two-year period where their performance was absolutely fine, or at least good enough that you wanted to continue employing them. So generally what's happened is there's been a change in the job. There might have been a change in technology. They might have been promoted into a role that turned out to be a bad idea. There may have been a change in them. I know we'll almost certainly be talking about health and disability at some stage in the course of this webinar, so there might be something that's affected their health. There might be something else that's affected their position or their attitude to work and that's filtered through into their performance.

As I say, capability is a permissible ground for dismissal. You are entitled to employ people who are good at the job. You do not have to, fundamentally under employment law principles, have to continue to employ someone who can't do the job that you've employed them to do. The question is whether you're behaving reasonably when you reach the point where you say, "You can't do this job anymore and we're going to have to let you go." The first point is that you must reasonably believe that the employee isn't capable of doing the job, that their performance is so poor that it warrants dismissal. And that reasonableness involves informing the employee that you've got a problem, making sure that they understand the scale of the problem so they know what the consequences of not fixing the problem would be, and crucially giving the employee a reasonable opportunity to improve their performance. And those are the principles that I think if you follow are also an effective way of dealing with the issue.

So the first thing we've got to be able to do is say, "Well what is poor performance? When do we know that someone's got poor performance?" And a lawyer's always going to say, "Ideally I'd like an objective measure of it. I'd like to have some objective idea as to why you say that somebody's performance is poor." That's obviously easier in some jobs than others. So you may have a sales job or a manufacturing job where you can easily measure the quantity and quality of somebody's work or their results. You may have something that's a bit more creative or something that's a bit more intangible, where measuring specific results is very difficult and it all comes down to the judgement of managers. And if what we're going to do is judge someone's performance based on the judgement of the manager, what we might look for is something objective that's underpinning that standard, something that shows that other employees can reach the standard that's being required, that people understand within that workplace what the appropriate standard is, and that that's dealt with in a consistent way.

But the tribunal is not there to run your business for you. If you can clearly identify that a particular kind of performance or a particular level of performance is not good enough, a tribunal is not really going to saying, "Well we think you should put up with it. We think you should make do with this level of performance." It's up to you as an organisation to define the performance culture that you have. And some employers are focused very much on high performance and require a very high level of performance. Some employers may be not so focused on that, and the tribunal will pick up on what kind of culture you're promoting within the organisation. So that's perhaps the first thing to think about.

I think the next thing, and something that crops up every single time I talk about this topic, is the importance of dealing with a situation in its early stages. It is much easier to deal with a poor performance problem when you've identified the poor performance immediately and you've dealt with it through appropriate informal feedback that's clear and constructive and is focused on the job and not just on the person. The worst thing you can do, I think it has to be said, is just let a problem fester, and I'm sure that's something we'll come back to in the questions later on. The problem of course is you've got to show that you've got a consistent standard that you're applying, and if what you do is you allow some people to perform poorly in a job for two years, three years - that's the sort of situation I do come across - and then at one stage a manager says, "Oh, I can't possibly tolerate this anymore. This person needs to go," it's very difficult to show that it's a reasonable conclusion that you can't be expected to employ this person when you have in fact been employing them to do a bad job for several years. It tends to show that you're not applying a consistent standard. So it's very important to make sure that this is addressed early, and I'm sure we'll get back to that point.

One thing that I think most people tuning into this webinar will have is a level of formal performance management process. So there comes a point when the feedback that you hope would have happened doesn't seem to have worked. The employee hasn't responded to it and you've got a problem that is not being dealt with by just feedback and coaching. And so you enter into a formal process that will result in a performance improvement programme and possibly warnings or a series of warnings that could ultimately lead to the employee's dismissal.

I think I'd make a couple of points about framing that. First of all I think entering into the formal process should not come as a surprise to the employee. The employee shouldn't go from thinking that everything they've done is completely brilliant to suddenly realising that their employer is thinking of putting them into a formal performance management process. There should surely have been some feedback, some discussion - a level of everyday management that would have made it clear to the employee that there was a developing problem that people were trying to deal with.

But I think possibly the most fundamental point that runs through the whole of this area is that the objective of the employer when going through a formal performance improvement programme should be to improve performance. And that seems like a really obvious thing but I think what can happen is that the employer gets into a mindset of thinking, "Oh, I've got this dreadful employee. They're not very good. We've tried to improve them and that hasn't worked. Oh well, I suppose we need to go down the dismissal route. What do we have to do?" And then someone advises them that in order to dismiss them for poor performance they've got to have this formal procedure with a performance improvement programme. And so the programme they institute in their mind is a hoop that they have to jump through before they end up dismissing. Now if that comes across as the way in which it's been handled, I don't think that's going to be a fair process. What you want is to make sure that your performance improvement process is genuinely an attempt to bring up the performance of the employee to the level where it needs to be for them to be a successful employee. It's got to be a good, safe effort to try and improve what the employee is doing.

And that leads us to a performance improvement programme that will have attached to it targets and objectives. So you will have something that says, "Well over the forthcoming period we would like you to do this amount of work or work to this particular standard or meet these particular targets." And this is where your mindset is very important because if subconsciously you're essentially setting up the employee to fail, it's very easy to come up with essentially random targets that are just "things we'll ask them to do that they won't be able to do and then we'll be able to get them through the rest of this process."

The targets and standards that you set have to be realistic. They have to be the sort of thing that other employees can reach without intervention. They have to be the sort of thing that genuinely reflects the problems that you've got with their performance and the sort of thing that they have to do in that job. The difficulty sometimes is you focus on the thing that's easy to measure rather than the thing that's important to measure. So a lot of care needs to go into setting those targets and objectives so that over the review period you can get a genuine impression of the improvement that the employee is making and whether they're making the improvement that's necessary to keep them in place.

Now that leads us to the tricky issue of timescales, and Laura, I believe we've got a poll here that we'd like people to join in with.

Laura Merrylees: Yes. Yes, we have. Thanks Darren. And it'd be great if you could get involved in our poll around the timescale that you typically use in a performance management process. So the question is, as you'll see from the screen there, when you implement a performance improvement process how long is a typical review period? And there are a number of options. So if you click on the circle next to the options I'll just read through those. You've got the option of up to one month. It could be up to three months. It could be more than three months. Or in fact there may be no typical review period that you operate. And I'll just give you a couple of moments to just answer that question before we go to the results.

And we can see that the majority of you, actually 60% of you, use a period of up to three months. And that's quite a bit higher than the remaining answers, actually, more than three months being the one that's least used. Darren, can I sort of hand back to you for your thoughts on that and to continue with your presentation, please?

Darren Newman: Yeah. Well I think that's an interesting piece of benchmarking really, to get the idea of how long these things take. One of the myths that often sort of festers around managing performance is that it can take a year to take someone from identifying their poor performance to reaching a decision as to whether to continue to employ them or not, but I think what this shows is that relatively few employers are taking more than three months over a particular performance improvement programme. Of course the overall process can take a bit longer than that but the actual meat of the review period is not likely to be more than three months. It won't surprise anyone to hear that there isn't a correct answer to this. It all depends on what is appropriate for the particular job that you've got. There are some jobs where you can almost expect an instant improvement. I think of maybe if you're looking at a telesales person who's got to make a certain number of calls per day, you wouldn't give them probably a three-month period to reach the right number of calls per day. You might expect them to get that sorted out in the next week or so. There are other jobs where the difficulties you've got with someone's performance are rather more deep-set, where perhaps three months wouldn't be long enough, and you would expect to be giving them longer to reach the right place in terms of performance.

What matters is can you as a business justify why you've got that timescale? It shouldn't be there because someone tells you. It should be there because that's what you need to genuinely expect the employee to make the progress that's needed to demonstrate that they can continue to work. So depending on the nature of the business, the seniority of the employee, the extent to which they're falling short in terms of their performance, those can all affect the factors that you've got. But thank you for joining in on that because I think that's a really interesting piece of benchmarking because there's quite a lot of you listening to this, to show that we tend to congregate around one month to three months in terms of that performance review process.

So what happens is we've gone through the performance review process and we get to the stage where the employee has not made sufficient progress. Again I would say one of the rules in employment law is that there should be no surprises. It should not come as a surprise to the employee at the end of a performance improvement programme that they've failed to meet the standard required because throughout that performance improvement programme there will be monitoring and evaluation and feedback and discussion. So there will be discussions with appropriate managers or mentors about how that performance improvement is going, and the employee shouldn't be in a position - unless they're very insensitive to these things - of thinking that they've done it brilliantly and you're delighted, only to be given the crushing news that in fact it hasn't gone far enough.

Now what do you after the performance improvement programme? Well some people will give another performance improvement programme. But if you thought at that stage that you've given the employee an opportunity to improve and there isn't really any further you can go, you could certainly move to the next stage, which could potentially lead to dismissal.

That would certainly require a hearing and at this stage we're essentially looking at a disciplinary hearing. All of the sort of standards that you would expect of a disciplinary hearing, apart from a disciplinary investigation, you would expect to see in a hearing around this sort where you've got a manager looking at it and listening to what the employee has to say, and with the employee having the right to be accompanied by an appropriate representative. The crucial thing that we're trying to get here is to listen to what the employee has to say about why the standard has not been met and if the employee accepts that the standard has not been met. And then a proper, open-minded response to what the employee has said.

So if the employee has said, "Well the reason I haven't got to this standard is because the equipment's substandard and it just doesn't work properly," that would be something that you would genuinely look at and seek to address. If it turned out to be disability-related, for example, and you didn't know that in advance but we know it now, then that would be something that would make you re-evaluate what has been said and think, "Well is this something that we need to make adjustments for? How do we move forward in the future?" So it's by no means automatic that dismissal is the next stage. It could be that there's a warning followed by another improvement programme or further monitoring. It could be that you decide you've reached the stage at which there isn't any further you can go and then that could lead to a dismissal. And as long as you can show that the employee knew that the potential outcome of not completing the performance improvement programme properly was dismissal, then that should be a fair conclusion for the employer to reach.

So my key points before we go to questions. We want clear standards applied to employees. We want to make sure that they're consistently applied and that we have early and informal intervention. We often talk about performance management as if it's a negative thing, as if it's something that you only do when things are bad. But of course management is essentially performance management. What is a manager there to do if not to make sure that the resources at their disposal are performing well? A clear opportunity to improve with appropriate support from the employer perhaps, and that level of support is something we can talk about later. And being prepared to make a clear decision. And I think this is an important point about employment law generally. It is certainly the case that you should be careful about making such a big decision about an employee and that you should make sure that there are proper processes being followed. At the same time, it's important not to - if I can use the technical legal term - it's important not to faff around too much because if you seem indecisive, if you seem like you don't really know what the appropriate standards are and you can't make a decision, then it's a bit difficult to demonstrate that your decision was a reasonable one. Tribunals respect clear, crisp decision making with an appropriate procedure leading up to that.

I think on that point, Laura, I will finish and we can move onto the questions that people might have.

Laura Merrylees: Sure, yep. No, absolutely fine. We've had loads and loads of questions coming in so we want to try and leave as much time as possible so that we can tackle some of these issues during that session. Thank you everybody for submitting your questions.

And our first question comes from Rachel but it echoes, Darren, many that we've had in on a similar theme. And the question is, "How do you deal with people who are going through a performance management process who go off sick?"

Darren Newman: Well yes, that is quite a big question, isn't it? In fact, I seem to remember that I wrote a Line manager briefing or a how-to guide for XpertHR on this very topic, so people who are XpertHR subscribers, have a look at the website and you'll find a quite detailed article, I think, that runs through lots of different permutations in relation to that.

The way I'd look at it is, you want as far as possible to get to a stage where you've given the employee an appropriate opportunity to improve. So it is a problem if they're off sick and can't demonstrate that improvement to you. Now obviously if they've been run over by a bus and their sickness absence is completely separate from the performance management issue then frankly you've got no real choice but to deal with the sickness absence and wait until that's resolved before you return to the performance management issue.

But I think the implication of the question - and it's the situation that crops up most frequently, I think - is that there is a link between the performance management and the sickness absence. So what you need to try and identify is what would it take for this employee to return to work, and if the answer to that is you must be able to lower your standards, because what's making this employee sick is the requirement that they meet a certain performance standard, then as an employer you've got a decision to make. Is the standard that they're asking you to move to one that you are prepared to accept as reasonable? Are you comfortable, when you review the performance management process, that you really are just asking the employee to do the job that needs to be done, rather than placing unreasonable stress and burdens on them? And if you're comfortable that the demands that you're making of the employee are reasonable, that they're the sort of demands that are made of other employees successfully, then what does that tell you? I think that probably tells you that this employee is not capable of reaching the standard required. So if you get locked into a situation where the employee is basically saying, "I cannot come back to work if you continue to require this standard of me. I cannot come back to work and do a performance improvement programme and as long as that is hanging over my head I will remain absent from work," then I think the ultimate result of that has to be, "Well you're not capable of doing the job then, because we need this job to be done to a particular standard and making that demand of you seems to make you ill. Well the best thing for your health might be that this is no longer a job that you have, so you're no longer having that demand made on you."

Now obviously whether you've got to that point requires proper investigation of the medical position. You'd want to go to occupational health, you'd want to talk carefully to the employee so that they understood that merely being absent is not a way of deferring grappling with this issue. You're still going to have to grapple with the fact that this job needs to be done.

So I think in many cases what it actually does is it can leapfrog the performance improvement programme and lead you to a more fundamental question of, "Are you able to do this job or does the thought of that make you ill? And if you deal with that, the result might be that your dismissal comes about sooner than it would have done if you'd gone through the performance improvement."

Laura Merrylees: Okay, well just looking at a question which I suppose can be a similar issue when you're running a performance management process and there's something which derails it somewhat. And this question comes in from Sam, and it's, "What happens if an employee raises a grievance part-way through a performance management process, Darren?"

Darren Newman: Well I think that's a really crucial question and I have to say some of the employers I work with I ask them this in a quarterly update and I say, "Well do you ever get a situation where the performance management process begins and a grievance is the response?" And for many employers I deal with they say, "Well that happens all the time. That's how these things play out. If you start the performance management process the natural defence mechanism is to raise a grievance."

I think employers, if they want to make sure that performance management happens effectively, they have to be very careful to make sure that managers are not left vulnerable to employees making accusations of bullying when all the employee is really complaining about is that there's been an application of performance management.

Now if someone raises a grievance that has to be taken seriously and you have to look carefully at what they're actually alleging. And if what they're alleging makes you as an HR professional think, "Uh-oh, that's a problem," if that's happened, if the manager has done or said something that's clearly inappropriate, then that's something that will need to be investigated and you may need to deal with the grievance before you can realistically deal with the performance management process. But if you look at it and what you see is that the employee is simply responding to the fact of the performance management process starting, and saying that that in itself is the thing that they are aggrieved of, or that is the thing they claim amounts to bullying, then unless you've got some reason to think that the manager is behaving inappropriately, I think you need to be reasonably robust with it, because otherwise managers will have no incentive whatsoever to deal with poor performance issues. They will simply run scared of the grievances that will follow.

So you would need to be able to take quite a robust approach to that and say, "Well I understand you've got a grievance. That is a grievance that we can deal with after the performance management process," or, "It's a grievance that we can deal with in a parallel situation but it doesn't affect the way we operate performance management. That will continue to be in place." Or it's something that the employee can simply raise during the performance management process itself. If the employee wants to say at the start of the process, "I don't think it's fair that you're starting this process," then the employer can listen to that and say, "Well I've heard what you say but very sorry, we're going ahead and we think it's appropriate."

I think it's very important that unless there is something clearly improper that is being alleged, that managers are supported and employers do not run around in a panic as soon as a grievance is raised. You've got to hold course, I think, and still be prepared to follow the performance management process.

Laura Merrylees: Okay. Emma asks an interesting question around the identity of the person who conducts the process at various stages. And Emma asks, "Is it advisable to have a different manager do the dismissal than the manager who conducted the rest of the performance improvement procedure?"

Darren Newman: Well it's an interesting question that, isn't it? If we were looking at a straightforward disciplinary process we do tend to say in a disciplinary situation we'd like a manager to be dealing with it who hasn't really been involved in the situation before. And I can see the strength in the argument to say, "Well if we've had one manager basically going through the performance review process and has not been happy and we're progressing to the next stage, by the time that manager is holding the hearing the chances are they're going to have some internal bias in favour of a dismissal because they will want to concern the view that they've already taken."

So if it's possible to have a separate manager conduct it then I think that's a good idea. However, the most important thing is that the manager who's making the decision is competent to make the decision. So what I wouldn't want to do in favour of having even more independence and objective fairness, bring in a manager who's not going to understand what level of performance is needed.

And it's also the case, frankly, that the manager who's been running the performance management process will have to live with the decision in terms of getting appropriate performance from the employee in the future. So if some other manager is helicoptered in and says, "No actually I think you're fine," and dumps the employee back on the original manager, I don't think that's a very supportive environment for that manager to be in, and again isn't a good incentive to get managers to actually deal with the issue.

So I would only use an external manager - and I say external, like from a different department or a different branch or a different part of the organisation - if they were going to be sufficiently familiar with the work and the context in which it's done for them to be able to make a good decision. I wouldn't want to have a manager who didn't know how the whole thing worked purely in order to have an independent voice, if that makes sense.

Laura Merrylees: That makes perfect sense and I think it is one of those quandaries that can leave people scratching their heads, so great answer. Thanks very much.

Darren Newman: Well it's one thing to be as fair as possible but you've also got to make a good decision, and a decision that makes sense in terms of the business. And I think with employment law we've always got to try and keep those two things in balance.

Laura Merrylees: Yeah. Just looking at the procedure a little bit further, and you were mentioning earlier, Darren, about not leaving problems to fester. That's the number one thing not to do, to let a problem just develop. And Larissa has asked a question: "When poor performance hasn't been dealt with properly or has been documented by warning letter so you haven't got the paper trail or any proper process, how could a company still act within the law?" And I guess maybe is there a shortcut or do you have to start at the beginning? What would be your thoughts there?

Darren Newman: Well I think probably you do have to accept that if you haven't dealt with the issue you to an extent are to blame for this problem, right? It's the employer's responsibility to deal with it and if they haven't dealt with it then the situation to an extent is their fault.

And the way I often talk to employers about this is to say, "Well really you owe the employee an apology, don't you?" Because you've given the impression that what the employee has been doing is good enough, and the employee's got into habits of the kind of work that they do and the level of work that they do, thinking - because you haven't intervened- - that what they're doing is good enough for this job. And if you're going to come to then with the news that in fact it isn't good enough, then frankly I think you do have to put more effort and more time into it because you've got to accommodate the employee having to reset their habits and their calibrations of what the appropriate thing to do it. So you can deal with it but I think you have to draw a line behind the past. You have to set a clear boundary where you say, "Look, in the past we've given you this impression. Unfortunately that's not true and this is what we need and this is what other people are doing and this is where we have a problem. We understand that it's our job to help you get this right and we will put the effort in to make sure that you have an opportunity to adjust and improve."

So I think you are essentially starting that process from scratch when you get to the point that you intervene. This is all, of course, assuming that you haven't just missed the occasional letter and that otherwise the employee thinks that what they've been doing is great. There may be circumstances where the performance is obviously substandard and there's obviously a problem and the employee should have known full well that it was a problem and has been lucky to get away with it for so long. So you can judge all these things on the circumstances, but I think the starting point is to draw a line and say, "From now on this is the standard we need."

Laura Merrylees: Okay, Carol has asked a question around alternative roles. And Carol asks, "Should an employee be offered an alternative role if they're not competent performing in the existing one?"

Darren Newman: I don't think there's a general rule that it's the employer's job to come up with a job that the employee can do. Remember I talked about contract right at the beginning. The employee's under a contractual obligation to be competent. That's one of the implied terms of the contract. So if an employee is employed to do a job and simply can't do it then I don't think the employer necessarily is under an obligation to move heaven and earth to find them another role. If there is an obvious other role then a reasonable employer would of course consider it.

So where this tends to crop up is you may promote somebody. And there's a standard problem with promotion, isn't there, that as you get promoted up the ladder you're doing less and less of the sort of work that you've done successfully in the past, and the chances become higher and higher that at the next level you're not actually going to be doing a competent job. It's the Peter Principle. That was intended as a joke in the 1960s but I think there's some truth in it.

And I think where that happens it is to an extent the employer's fault because they've made a decision that the employee would be a good promotion and that's turned out to be wrong. There are probably faults on both sides in reaching that conclusion. And if it was easy enough to put the employee back again and say, "Well actually why don't you just go back without these managerial responsibilities and go back to the job you were doing so well before?" then I think a reasonable employer would probably do that, unless there was some compelling reason why they couldn't.

What I don't think the employer needs to do is search the whole organisation to find a role for them to be slotted into. And I think this is particularly true where the problems that the employee's got are not technical. It might be that the employee struggles with one piece of software but could work very effectively in other parts of the organisation. But where the problem is the employee's attitude or approach to work or their ability to concentrate or focus on particular tasks, then there's a very strong argument for saying, "Well there's no point in just moving this problem from one department to another in the hope that that sorts it out." I think you would need to have a very clear reason for thinking that the employee might have a problem in this job but would be absolutely great in this other job. And if there's an obvious vacancy the employer should consider it, but I wouldn't want to over-emphasise how far the employer needs to go in that.

Laura Merrylees: Okay. Darren, I've just one more question here on procedure and then I can see that we've had quite a lot of questions that have come in around disability, so I'll be moving onto those very shortly. But just a last one here on procedure. Charlie asks, "Is it possible to manage performance along with absence conduct issues or is it better to do these independently? Do you tot them up together or take separate strands?"

Darren Newman: Interesting. I think it's probably true to say that if you're in a large organisation or a public-sector organisation you'll have very separate strands. You'll have a performance management route and you'll have a disciplinary route and never the twain shall meet and there's very little cross-checking between the two.

In the private sector and in smaller employers and certainly more in industrial workplaces, if I can put it that way, I've come across lots of employers that simply have one disciplinary procedure and they use that to deal with performance issues as well as disciplinary issues. And you might have a first written warning for lateness dealt with as a conduct issue and you might have another written warning coming in because of simply the quality of your work, and they build up to eventually a final written warning and then a dismissal. There's no rule that says that's unfair. I don't think that's ideal, and I think the crucial thing that we're looking for in a performance issue is the opportunity to improve. And there's a difference between a warning which is disciplinary, which is, "Don't do this again," and an opportunity to improve, which is, "We're going to take some time and help you get to a better place," in that there is support available. And I think if you're using a disciplinary strand to deal with poor performance issues then the danger is that you miss out on that support that might otherwise be appropriate.

Now if the poor performance you're dealing with is essentially just about negligence and carelessness, well that's often dealt with as a conduct issue anyway. But if it's genuinely about the sort of thing where the employee just needs some retraining or needs a bit of help dealing with particular aspects of the job that have changed over the years then I think the disciplinary process doesn't necessarily facilitate that. So I ideally would have them in separate strands. But the level of warning you use, you can always have one eye on what other problems there may be with this employee and what stage we're at that might inform that.

Laura Merrylees: Okay, well turning to some of the questions that have come in now around disability and ill health, Emma asks a question which is really focused on, "How do you distinguish between poor performance and mental health concerns to ensure that you get it right?" What would your advice be there?

Darren Newman: Well first of all this is incredibly tricky. This is perhaps one of the most difficult issues to deal with in terms of employment law. What I would say is if we just step back and look at our legal obligations when it comes to the Equality Act and disability discrimination, if we're looking at the duty to make reasonable adjustments or we're looking at what we call Section 15 discrimination, which is unfavourable treatment because of something arising in consequence of a disability, they both require the employer to know about the disability or reasonably to know about the disability. And it's not enough if the employer just suspects that there's something wrong. That's not going to start triggering duties to make reasonable adjustments.

So I think as long as you've got a reasonably supportive employment environment, it's appropriate to say, "We go down the performance management route" and if the employee wants to say, "Actually one of the things that's affecting this is a mental health concern and here is my issue," then you deal with it when it gets to that stage. So I don't think it's unreasonable for it to be for the employee to make it clear that mental health is an issue there.

What you've then got to decide as the employer is what account you take of that and what that means. Are you dealing with a short-term episode that is going to resolve itself and so it's essentially just dealing with a sickness issue? Or are you dealing with something that is going to dictate the way in which the employee does this job? And if it dictates the way in which the employee does the job, then you have to decide whether adjustments can be made so that your expectations change and whether you're prepared to accept that? How crucial is the job? How different is the performance? And it's very difficult to give any sort of legal view as to how far you need to go because it all just depends on the circumstances and it all depends on what the tribunal eventually thinks. You've just got to, as an employer, say, "Well this is what we're prepared to do to accommodate the particular need. This is the compromise we're prepared to make on performance or this is the change that we're prepared to make to help you perform better, but we're not prepared to go any further than this." And where that line is drawn is basically something the employer's got to decide and stick to.

Laura Merrylees: Okay. Trish asks an interesting question around any particular advice that you might have in respect of an employee with learning difficulties.

Darren Newman: Well I think what you should have, if you've got someone who's actually got a specific learning disability, it should be possible to have an assessment done by whoever is the appropriate person to do that, that will give you good information about what is reasonable to expect this employee to do and what it's not reasonable to expect this employee to do.

In many ways I think that might be easier than some mental health issues where it can be quite difficult to predict what the outcome is because to an extent it's about the subjective experience of the employee. But if it's a learning disability I think it can be easier to get some sort of assessment as to what's appropriate and what's not appropriate to ask the employee to do. And then you've got the decision to make, which is, "Well given what is appropriate to ask the employee to do, and given what support would be needed to allow the employee to do that, can we accommodate that? Is that something that we can do?" And I think all the tribunal would look for from the employer is a positive attitude towards it so that they are genuinely trying to make that work, genuinely trying to find a way in which the job is a proper, real job with economic benefit to the employer but with appropriate support in place or adjustments about the level of work that's demanded or the level of responsibility that the job entails that is appropriate for the particular needs that that employee has. Yeah, I think it's just about getting good, clear advice early on and talking to the employee and sometimes the employee's family about what is appropriate and what is not appropriate.

Laura Merrylees: Yeah, having that communication and understanding, isn't it, really?

Darren Newman: Absolutely.

Laura Merrylees: Karen asks a question which is around return to work and asks, "How can you safely performance manage a returning employee who has been on long-term disability-related absence?"

Darren Newman: Well it's tricky, isn't it? I think if someone's been on long-term absence and they're coming back, I think the most common thing is probably that there's some sort of phased return, there's some sort of build-up of the amount of work they're being asked to do. What I certainly wouldn't expect is that the employee would come back on the Monday and the employer immediately says, "Oh, and as you may remember we're currently in week 3 of your performance improvement programme. Here are your targets for this week. I'll be meeting you on Friday to talk about progress." I think that would be unfair. I think we have to accept if someone's been on long-term sickness absence and has now come back, the chances are you've lost any progress you made immediately before they went off sick. You probably have to re-evaluate where you are in terms of the performance improvement process.

So you need to give the employee time to readjust. You need to phase them back into the workplace. You need to give them an appropriate time just to get used to the idea of coming into work again before you start looking too closely at what you need to do in terms of performance improvement. You want the supportive environment, really. You've invested quite a lot. If you've had somebody off sick for a long-term period and you haven't dismissed them and you've paid them all their contractual sick pay and now they've returned, you've just spent quite a lot of money on not dismissing that person. It's worth spending more time and resource on making sure that you give them a proper chance to get up to speed again before you just start the process saying, "And by the way we were never very happy with the work you were doing before you were ill."

Laura Merrylees: Okay. Alice asks a question around pregnancy and asks, "How do you deal with poor performance for a pregnant employee?"

Darren Newman: I wouldn't basically. I mean, I suppose that's a lawyer's answer, but here's your problem. If somebody is pregnant they are entitled not to be treated less favourably - well, unfavourably - for any reason that's to do with their pregnancy. So if they can show that any aspect of their performance is pregnancy-related, any treatment you mete out to them as a result of that is going to be discrimination. It's going to be direct discrimination. You can't justify it, or at least potentially you can't justify it.

So it's very tricky, I would think, to start taking proactive measures about somebody's performance if there is any argument at all that their performance is affected by their pregnancy.

Now of course you could say, "Well I'm fairly sure that their performance has nothing to do with their pregnancy." Well fine. If you can maintain that and there is no argument to the contrary then there's no problem because if you manage someone's performance while they're pregnant but it's nothing to do with their pregnancy that won't be discrimination. It just strikes me that that is a difficult area to be in, and it wouldn't take much to persuade the tribunal that in some way the employee's pregnancy did affect their performance.

And of course they're going to be going off on maternity leave. So they're potentially going to have up to 52 weeks off relatively soon. So you might query what is the benefit of really addressing performance management issues if somebody is then going to take an extended period and then come back again? Are you really going to have banked the improvements that you got before the maternity leave took place?

So it obviously all depends on the effect that the poor performance is having on the workplace. It depends on the level of employee we've got, the economic impact of their poor performance, all that sort of thing. But I would encourage employers if they can to provide what support they can and work around the problem until the employee comes back, because I think the risk of straying into discrimination is just so high in that area, it's probably not worth grasping the nettle.

Laura Merrylees: Okay. I'm going to look at some of the questions now around enabling our managers, HR's managers, to sort of grasp the nettle and deal with poor performance. We've had a few questions around this where the theme is, "How do we encourage our managers to do this?" I mean, Debbie's question, for example: "We have some managers who avoid dealing with poor performance. Any tips on how to change that?"

Darren Newman: Well I feel a complete fraud doing this of course because I have in my time been a line manager. I'm not a line manager anymore and I'm very glad about it. I wasn't very good at it and I definitely avoided dealing with any poor performance that I ever came across. And that's a very human reaction. It's a very British reaction, frankly. It's just not the sort of conversation that we feel good about having.

So a couple of things. First of all managers need support and training on how to have these conversations because it's not a natural skill that many of us have. So if you want managers to engage in difficult conversations with employees where they're saying potentially negative things about what that employee is doing, then I think it's important that you've provided them with the skills and the toolkits to enable them to do that. So management training is very important.

But I think there's something else as well, which is managers need to be supported when they decide to do this. And it goes back to what I was saying before that if you're a manager and you think, "Well I've got some poor performance over here and I could intervene and I could deal with it, but if I do I'm probably going to get a grievance raised against me, and if I've got a grievance raised against me then I know that my employer is going to spend three months investigating whether I'm a bully or not, and that's something that's going to be hanging over me for the next three months and I'm still going to have this problem with poor performance," then they don't have much of an incentive to get on and do it. So the support that managers are given is important.

And I think there's one other thing as well, which is when we're looking at how we reward managers and what we measure them on, nowadays line managers are given all sorts of people management responsibility, people tasks to do. Are we properly rewarding them for doing those tasks well? Because very often where you get managers who are responsible for a particular area for the business, what they're measured on is the performance of that area of the business. They're measured on a number or an output or a profit margin or a growth figure, or performance targets of some other kind that aren't necessarily directly related to how they manage people. And that can mean that when a manager is faced with a problem of potentially a poor-performing employee, the calculation they have to make is, "Well if I spend some of my time intervening here, what is the cost going to be in terms of my time dealing with other aspects of this business, and will that result in me being more likely to miss a performance target of my own in terms of output or profit or whatever, because I've been doing this thing that I'm not actually being measured on?"

So I think we need to look very carefully at how we manage the performance of managers, if you like, and what success looks like and what we expect a successful manager to be doing. Because if we just give them a number to hit we can't really complain if they just focus on hitting that number and potentially overlook some of the people management issues in the course of doing that.

Laura Merrylees: That leads us very nicely, Darren, into our next question from Sarah, looking less from one individual line manager's point of view but a cultural point of view. Sarah asks, "How do you recommend moving from a relaxed performance culture to one that is robust and high-performing but you nevertheless ensure fairness?" So there's presumably a line in the sand that needs to be drawn there. How do you go about doing that?

Darren Newman: Well do you know I think that's probably a question for better minds than mine. How do you completely change the culture of an organisation? I think that's the sort of thing you can do PhDs and books about. But I like the phrase of drawing a line in the sand, and I think when all else fails, try telling the truth. Explain to people why you need to move from position A to position B and what the pressures on the organisation are and what the potential consequences of that are. Because generally speaking you're not moving from one culture to another on a whim. You're moving because there's a business imperative. You really need to do this. There's a threat to the business and if you don't meet that threat and improve the level of your performance as an organisation then that's going to have bad consequences for everybody. So if people understand that that is genuine I think they're more likely to come with you.

If it's also not seen as a top-down thing but is something that everybody is participating in and that you're not only asking other people to perform better, you're also asking and challenging yourself to perform better and do better as an organisation and you can show what steps you're taking in that direction, I think that will help people. It will give credibility to the idea that what you're doing is something that is supposed to benefit absolutely everybody.

So whether that's some sort of 360° appraisal process, I mean all of that sort of stuff that I'm absolutely no expert on at all, maybe there's something you can do in that space that would help you demonstrate that we're all in this together, to use an appalling cliché.

Laura Merrylees: Okay. I mean, in terms of performance issues I guess you get the situation - and Jo's alluding to it here - where you've got okay performance. So it's hard to pin anything which is specifically failing or not meeting target; it's just okay, so just about delivering the minimum required but not anything above that. How can you manage that type of poor performance effectively through a process and achieve fairness?

Darren Newman: Well I think the process that we've been talking about has been poor performance rather than okay performance. I don't think you can dismiss somebody, for example, because their performance is just okay. Or at least not outside the first two years of their employment. What you might be looking at is redefining what "okay" is, because what some employers regard as okay or just about managing might be what some other employers would regard as outstanding achievement. So it sort of depends on your own culture as what okay is.

From a legal point of view I would say that okay performance is actually okay, and you wouldn't dismiss somebody for it. If you feel that actually you don't want to employ somebody who's just performing in an okay way, then really it's just about our vocabulary, isn't it? What you're describing is not okay performance. It's performance which is not good enough to keep your job. That's poor performance and it's really just a question of how you describe it.

In terms of, "Can you voluntarily move from being basically happy with everyone to being completely delighted?" well I'm just going to have to duck out of that question, I'm afraid. I'm a humble lawyer and I don't entirely know how you would go about doing that. There are greater minds than mine in the XpertHR universe that I think could help you with that.

Laura Merrylees: Okay. I'm conscious that we're sort of approaching the end of the webinar so I just want to squeeze in a couple more questions if I can, please.

Darren Newman: Okay, I'll be really quick in the next answers.

Laura Merrylees: Okay, don't worry. Claire has asked a question about how to manage personal issues and poor performance, so assuming there that somebody is bringing up a mitigation that there are personal issues in their home life or otherwise that are affecting their performance. How does that get factored into the process?

Darren Newman: Well I think it's a perfectly legitimate thing for the employee to raise and it's something the employer needs to be aware of. That's why we're saying as we're going through the formal process the employee has a right to be accompanied so that their companion can check these things and bring it up and put it in.

I would also hope that in normal humane management once you start addressing problems part of that will be, "Well what's the reason for this? What's the difficulty that's been caused?" And if that's turned out to be related to a personal issue then the employer might well want to step back and say, "Well okay, we'll accept that while that personal issue works its way out we need to adjust our expectations over here," and that's a reasonable give and take in the employment relationship. And I think a fair employer would give an employee space who has got a particular personal problem that needs to work its way through that might affect their performance for a limited period of time.

The difficulty of course comes at what stage you say, "Well you know we've been dealing with this issue for three or four months now. It doesn't seem to be getting any better. This just seems to be the new normal in terms of your personal life and so we need to talk about what that leads to in terms of the performance we can expect, because we're not necessarily going to put up with poor performance from an employee purely because they've got a difficult life." It sounds brutal to put it that way but ultimately it is a business relationship and it is not the employer's job to manage the personal issues of the employee, and there's a level beyond normal everyday support and making temporary adjustments where the employer is entitled to say, "Well we still need this job done, I'm afraid." And you may need at that stage to explore other options, whether that's an extended period of leave to deal with it or part-time working or that sort of thing. But I don't think the mere existence of long-term personal issues is a reason not to tackle the performance issue. Sorry, that was a longer answer than I was planning.

Laura Merrylees: No, don't worry. It was all good stuff, don't worry. We've got a question that has come in from Caroline and I think it would be wrong for us not to recognise the reality that in certain situations the question of settlement crops up when performance management arises. And Caroline asks, "In your experience, when is the best time to have a protected conversation when a performance issue hasn't been managed particularly well for a few years and perhaps a pragmatic commercial view is being taken?"

Darren Newman: Well I did actually do a webinar on this last year, I think, so if people look at the webinar archive we do a whole thing on protected conversations and how there is no such thing really. But I know what we're talking about here. I think the point comes where as an employer the question is, "Have I reached the point where I actually would rather this employee left rather than dealing with it?" Because of course you've invested in this employee. You've trained them, you've employed them for two years. If you've got to the stage where you say, "Do you know what? I would like them to leave," that's the point at which you have the protected conversation because of course the whole point of that is to negotiate an end to the employee's employment.

If you haven't got to the point where you'd like them to leave and you still think, "I'd like them to just get better at this," then you definitely don't want to be having a protected conversation because as soon as you start that conversation the momentum is going to be towards parting company with some sort of settlement. So I would hold off until you've reached the point where you think, "I really don't want to employ this person anymore."

Laura Merrylees: Well that's a succinct answer to end on. But unfortunately that is all we have time for today. Thanks ever so much for all the questions that have come in. We hope you found it useful. We've plenty of resources on the XpertHR site around managing poor performance, including our recent Line manager briefing, which was written by Darren.

And we'd also love you to join us at our next webinar on 2nd July, where we will be discussing the support line managers can provide around mental health. You'll be able to register for that webinar within the next few days so do take a look out on the site for the registration details.

Thank you so much again for your questions today. Those that we haven't been able to get to we may publish as FAQs on XpertHR so please do keep an eye out.

And of course I'd like to say a big thank you to our speaker, Darren Newman, for joining us today and for answering the great questions that we've had submitted. Thanks very much, Darren.

Darren Newman: Thanks for having me.

Laura Merrylees: We are recording today's session and we'll have the slides, transcript and recording available for you shortly. That brings us to the end of today's webinar, brought to you by XpertHR. Thanks for listening and goodbye.