Business Law
June 12, 2019

Managing an employee's performance

All employers want to support their employees to achieve their best performance. A performance management procedure should aim to ensure that employees contribute in the best way possible. Any procedure should be used in conjunction with a suitable benefit/reward programme and appraisal system.

Identifying the correct procedure

In circumstances where an employee is not performing to the expected level or standard, the employer should first consider whether the reason for the underperformance is that the employee 'can't do', or 'won't do', the work. If it is a case of 'can't do', then the underlying reason will be poor performance or capability, and the employer's performance procedure should be followed, this may include offering the appropriate training.

If it is a case of 'won't do', and the work is part of their job description, then the underlying reason will be misconduct. In these circumstances the employer's disciplinary procedure should be followed.

Bear in mind a situation that might, at first glance, appear to be a clear case of poor performance might turn out to be one of misconduct.

The Procedure

First and foremost, gather the evidence. What is the reason for the poor performance? Are there poor resources, market issues, health, lack of expertise/training? Once you have gathered the information you may hold an Informal meeting with the employee. The employee has no right to be accompanied to an informal meeting, although this can be offered if you feel it necessary.

“Can’t do” Procedure

If, after this meeting, it appears that the reason for the poor performance is due to the fact that the employee “can’t do” the job then you should set out the steps that are to be taken by both the employer and the employee to enable the employee to do the job. You need to list the steps to be taken, the date by which improvement is expected and the date of review.

If, after taking the necessary steps to enable the employee to do their work, there is still poor performance a decision will need to be taken as to whether the employee is able to do the work that they are employed to do. If they cannot, you may then look to dismiss the employee due to capability reasons. If you do get to this stage then a formal meeting will need to be arranged, to which the employee will be entitled to be accompanied. If a decision is made to dismiss, this will need to be confirmed in writing and the employee informed of their right to appeal.

“Won’t do” procedure

If, after gathering the evidence, you believe there is misconduct you must arrange a formal meeting – this will be held under the Disciplinary Policy. The employee has the right to be accompanied. If, after the formal meeting, you find that there is misconduct, you must confirm in writing the steps to be taken, issue a warning and inform the employee of their right to appeal.

After gathering the evidence, you may believe there is gross misconduct or the employees conduct does not improve after being given a warning then you should hold a meeting and inform the employee that dismissal maybe the next stage. Again, the employee has the right to be accompanied to this meeting. If you decide to dismiss, you must confirm in writing the reasons for dismissal and inform the employee of their right of appeal.


In order to assist employers to deal with these issues we have created the EmployRight scheme. The scheme provides an employer with:

  • The statutory statement of terms of employment for all their employees,
  • A disciplinary procedure,
  • A grievance procedure, and
  • An equal opportunities policy.

All of which will be reviewed on an annual basis

In addition, the scheme provides an advice line enabling an Employer to talk with a qualified lawyer at Berry & Lamberts about any problem that they have in the employment field for up to 12 hours in any 12-month period.

EmployRight enables employers to feel secure in the knowledge that they have the necessary documents and specialist advice at hand at a cost which is fixed.

If you need support or advice about any employment legal issues you may have you can contact Paul Reader or the wider Commercial and Dispute Resolution Team on 01892 526 344.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.



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