“Protected conversations” with poor performers – will it help?

Nov 14, 2011 | Good Management

In a recent speech the Deputy Prime Minister Nick Clegg said employers should be allowed to have “frank discussions” with employees about performance problems without fear that the conversations will be used in a tribunal claim. It would be an extension to the “without prejudice” principle that is often used in disputes when seeking to settle a claim. Prime Minister David Cameron later confirmed the government would be consulting on the proposals.

So would it be a good thing? In many ways I think yes it would, particularly if there is an employee who is not performing in his/her role, and it seems clear to the employer that the chances of them performing effectively in the role ever are very slim.

Can’t you dismiss a poor performer at the moment?

It’s perfectly possible, but often utterly horrendous.  There are a lot of ifs and buts, and each situation is different, but at the moment generally the only option open to employers is to instigate first informal then formal performance management, and to get legally from zero to dismissal in this scenario usually involves the following:

  • Setting targets and objectives, having regular reviews, pointing out clear examples of concerns, setting time limits for improvement
  • Instigating the disciplinary procedure (or related capability procedure if relevant), having a first disciplinary hearing, issuing a verbal warning, possibly having an appeal hearing, then having a further period of review
  • Instigating the disciplinary procedure again and holding a second disciplinary hearing in the event of no or insufficient improvement, issuing a first written warning, possibly holding an appeal hearing, then a further period of review
  • Instigating the disciplinary procedure again, holding a third disciplinary hearing in the event of no or insufficient improvement, issuing a final written warning, possibly holding an appeal hearing, then a further period of review
  • Instigating the disciplinary procedure again holding a fourth disciplinary hearing in the event of no or insufficient improvement, dismissing the employee, probably holding an appeal hearing, then a three month wait to see if the employee is aggrieved enough to bring a tribunal claim.

Of course procedures vary, sometimes it’s possible to skip a warning level depending on the nature of the concerns and not all employees will appeal everything. But as you can imagine, the whole process from start to finish can easily take several months.  It’s a very unpleasant time for all concerned. Working relationships, often already strained, become worsened, the employee feels humiliated and persecuted. Sometimes they bring a grievance against their manager. Sometimes they go off sick with stress. All in all it can be a pretty horrendous time.

My focus is small businesses and I know only too well how much of a drain on the business owner this kind of scenario can be, and how much of a dramatic effect it can have on the whole business. Employees sometimes take sides, feel uncomfortable about what is going on, are already probably picking up the slack from the poor performer and frequently resentful that the business owner hasn’t dealt with it more quickly. There is a bad atmosphere in what is often a small open plan office and going to work is not pleasant for quite a while.

What would a protected conversation be?

Being able to have a protected conversation with an employee may avoid a lot of that. Imagine:

“Look it’s really not going well is it? You’re struggling to perform in your role despite us trying everything we can to support you. We don’t want to go down the formal route involving the disciplinary procedure as we feel that would be very stressful for you, and we feel ultimately the problem is that you’re not suited to your role. We could try you in another role, doing less with lower pay, or alternatively we could come to an agreement whereby you will leave in x months, we’ll give you time off to look for alternative work, help with CV and sort out a decent reference, and make you a termination payment.”

I do sometimes guide my clients in having similar conversations already, where appropriate, or sometimes do it for them. It involves treading a very fine line, being pretty cagey, and often doing it gradually,- sowing a seed’ rather than in one frank conversation. But I know many of my clients get frustrated by not being able to just come out and say it, for their own and the employee’s benefit.

Sounds good. Any concerns?

There have been a number of concerns raised in commentary about Mr Clegg’s speech, but actually from an- on-the-ground –in-small-businesses’ perspective the main one that occurs to me is what happens if the employee says no?

The employer would obviously be free to continue with a formal process, and the conversation would not be allowed to be used against them in a tribunal. That’s great, but that doesn’t mean it won’t be held against them by the employee during the following month of performance management/disciplinary procedures, making the whole process potentially even worse than it otherwise would have been.

There is often a certain element of- you’ve already made your mind up’ once formal procedures have started with performance management, but a protected conversation would make this attitude from the employee almost inevitable in my view. So while the employer wouldn’t be put at legal risk from the conversation, it would certainly make the employee more likely to refuse to engage in the process, to appeal every stage of the process and to make counter-accusations against the employer.

So, taking into account legalities and my constant aim of making life as easy as possible for my small business clients, I cautiously welcome the idea, and feel conversations like this may be helpful as long as they are worded carefully, timed carefully and careful consideration taken of the employee concerned, their history, their attitude and likely outcomes.

For advice on dealing effectively with a poor performer in your small business, contact us at [email protected].