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Barlow Robbins Employment Team

Barlow Robbins Employment Team . Managing Poor Performance and Absence. David Ludlow Partner . Introduction. Culling Retention and investment Human Resource Management issues Role of employment law(yer) implementation. Poor Performance . Managing Poor Performance

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Barlow Robbins Employment Team

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  1. Barlow Robbins Employment Team Managing Poor Performance and Absence David Ludlow Partner

  2. Introduction • Culling • Retention and investment • Human Resource Management issues • Role of employment law(yer) • implementation

  3. Poor Performance Managing Poor Performance • The Contract of Employment • Contractual obligations • Duties • Targets • Incentive payments (Commissions, bonuses, LTIPs) • Rules, Procedures and policies

  4. The Contract of Employment • Contractual powers • Probationary period • Sensible Termination provisions • sensible break clauses where Fixed Term • sensible break clause where long notice period • Pay review provisions • Duties – flexibility

  5. Fairness Generally • Fair dismissal • Fair constructive dismissal • Poor Performance = incapability i.e lack of skill, aptitude, health or any other physical or mental quality e.g – “lack of flexibility and adaptability” • Poor Performance = lack of qualifications • Poor Performance = bad conduct

  6. Correct Approach to Fairness in Performance Management • Normally Employer must warn • about shortcomings • possibility of dismissal • Normally Employer must give opportunity to improve • Performance improvement programme • Statutory Disciplinary Procedures? • Statutory Dismissal Procedures • Statutory Grievance Procedures • Discounting for chances of improving

  7. Correct Approach to Fairness in Performance Management • Comply with own Performance Improvement or Capability procedures/ policies • Futile to comply with own procedure? • Senior people failing • Gross negligence or incompetence • Tactical value of summary dismissal

  8. Managing Absence Short Term Intermittent Absences • Unconnected ailments, recurrent conditions, child care problems • Skiving, sickies

  9. Managing Absence Short Term Intermittent Absences Management Tools • Constant review • Warnings • Deductions of wages for unauthorised absences • Dismissal

  10. Managing Absence Short Term Intermittent Absences Legal Justification • Capability • Conduct unauthorised absences • SOSR unauthorised or excessive absences • Which one? • Disability issues

  11. Managing Absence Short Term Intermittent Absences On-going Management ACAS publication - Discipline and Grievances at Work • Investigate promptly • No explanation - Conduct issue • Medical certificates? • Reasonable adjustments • Warn of need for expected improvement

  12. Managing Absence Short Term Intermittent Absences Pre-Dismissal Management The 3 keys to safety • Review attendance records and reasons for absence • Return to work interviews • Reviewing medical evidence • Code of practice on disability discrimination - true medical picture • Malingering? • Failing to communicate

  13. Managing Absence Short Term Intermittent Absences • Appropriate warnings of dismissal • Classic warnings • Triggers – automatic warnings • Flexible triggers • Adjustments to absence schemes –disabled employees • Consult • Could reveal stress or other problem • Adjustments • Other considerations • Sick pay • Consider alternative employment. • Pregnancy • Emergency Dependent Care Leave • Combat sickies – e.g Tesco's initiative

  14. Managing Absence Long Term Absence • Holiday pay? • Contractual sick pay perpetuates? • Discretionary sick pay? • Continue to manage and monitor • Do not be intimidated • Consult • Ascertain true medical picture

  15. Managing Absence Long Term Absence • Data Protection – Information Commissioner’s Employment Practices Code • Managerial function or medical function? • Information should not be passed on? • Do not take paper decisions • DDP – standard procedure

  16. Managing Absence Long Term Absence • Disability • All of the above applies • Adjustments – "to terms, conditions or arrangements” • Employees who become permanently incapable? • Adjustments – Think proactively, imaginatively and energetically • Tactics e.g doctrine of frustration? • PHI – avoid wrongful dismissal • Implied Term - Cannot terminate • Unless "good cause" – not just gross misconduct • Notice money – only if statutory minimum notice

  17. Managing Poor Performance and Absence Tips - Absence and Poor Performance • Redundancy • Relevance of previous warnings for different misconduct • Lapsed warnings? • Contributory fault – negotiate a settlement • Consider summary dismissal as a tactic

  18. Any questions? David Ludlow Concord House 165 Church Street East Woking Surrey GU21 6HJ Tel. 01483 748502 Fax 01483 729933 davidludlow@barlowrobbins.com

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