If you’re faced with managing a staff member who is underperforming, it can be a daunting prospect to know exactly how to approach the situation.
Robyn Clark (aka JacksonR) and Susi O’Brien (HR Help advisor) hosted a lunchtime HR Clinic which looked at how to tackle this tricky issue.
As expected, we received lots of questions from members which Robyn and Susi discussed during the session.
For those who couldn’t attend, here is a summary of the questions we received, and the answers given.
When is it performance and when is it conduct?
We’re talking here about the can’t do versus the won’t do. If the employee has all the skills and abilities necessary to do the job, but is just choosing not to do it, then it’s a conduct issue and should fall under your disciplinary policy. However, if there’s an element of being unable to – i.e., not having had the right training, or lacking the skills or ability to do the role – then it’s performance and should be managed as such.
An example I always used to see when I worked in HR was managers wanting to performance manage staff for lateness. Being on time isn’t a skill – you don’t need training to be shown how to turn up on time. Lateness is purely a conduct issue. Whereas, for example, struggling to follow a procedure or protocol due to a lack of understanding would be a performance issue.
I need to performance manage a particular staff member but it’s around sickness and tardiness as much as anything. It’s been many years since I’ve done this and I’d just like an update on the employment law aspects of what we can and can’t do/say in relation to expecting improvement. The person concerned has a pregnant partner which is impacting on his time off too.
So here’s a prime example of when is it performance management and when is it not?!
Tardiness, as I’ve just said, is a conduct issue. You need to deal with that in the same way you’d deal with any other misconduct – an informal chat to highlight the issue, clarify what your expectation is going forward and explain that further instances may lead to disciplinary action.
In terms of sickness, you should be managing this in line with your sickness absence policy. If persistent absence is a problem, that’s the policy you should use to manage it. There are two HR masterclass modules on managing sickness through Practice Index Learning that you may want to look at – managing short term absence and managing long term absence.
If an employee’s health condition is impacting on their actual performance in the job, then this would fall under performance management. You’d need to consider whether the health condition would be classed as a disability and, if so, you’d need to consider what reasonable adjustments you might be able to implement to help them to improve their performance.
The issue of the partner being pregnant shouldn’t affect things in a legal sense as there’s no legal protection for the non-birth parent other than the right to attend two antenatal appointments – these should not be included in any absence management process but they can also be unpaid. However, we all want to support our staff so if you do want to allow additional time off to attend appointments this needs to be agreed with him in advance and expectations clarified. If, however, he’s taking time off because his partner is ill then you need to make sure this isn’t being classed as his own sick leave. You should have a policy on time off for dependents and be enforcing that.
Just to add following on from these two questions – it’s really important to separate out which policy or process is being followed. If you get to the stage where an employee is dismissed, it must be very clear what the reason for dismissal is otherwise the employee may have a claim for unfair dismissal. Therefore, when taking formal action, you should always be clear under which policy you are operating.
I’m looking for some strategies to manage a member of staff who flies just under the radar, coasting along leaving most of the work to more proactive, conscientious colleagues. Careless oversights are occurring which are becoming quite serious, i.e., medication errors.
Ah the coaster! Evidence is really key here so if you have concerns that someone isn’t pulling their weight you need to be able to quantify that. Can you audit their activity by, for example, looking at call stats, or how many appointments a clinician takes off the list? If there’s feedback forthcoming from staff, look into what they’ve reported and consider how you can witness or evidence this for yourself.
When an error occurs, you need to pick up on it immediately with the employee. Highlight what’s happened and ask them to explain how they think it occurred. This might draw attention to a training need that you weren’t aware of, or it might expose a poor attitude towards their work. Try to nip it in the bud and look for improvement as you might not need to escalate to a formal process just yet.
I struggle to have discussions with staff about poor performance. How should I structure the conversation?
This is a great question. Too often we put off talking to staff because we’re afraid of how best to do it which then often leads to either not doing it at all, or psyching yourself out so much that when you do get to it you can come across in a negative way.
Start off by remembering that this process is about improving performance, not punishing people for not doing something right. The aim should be to get the employee up to the required standard. We want our staff to do well and excel in their jobs so go into it trying to think positive.
You need to start by identifying the issues with specific examples. Don’t be woolly or cagey about the problem as the employee won’t be able to do anything about it. So, for example, I’ve noticed that your activity in the team is quite a bit less than your colleagues. On average they process about 10 documents an hour, but on doing an audit your average is around five. Avoid comments like “you’re just slower than everyone else”.
Once identified, ask the employee why they think this is happening. They may need a bit of prodding if they’re not very forthcoming – ask questions such as whether they enjoy the job, whether they feel they need any training, do they understand the process, do they feel they need additional support etc. Listen to their answers and take them on board.
Try to come up with a plan of action for both of you to implement. That might be you agreeing to arrange some additional training or mentoring, or investing in some equipment. They need to commit to what they’re willing to do to improve – be that attending that training or using the tools provided etc.
Then you set the expectations, and you need to be clear on these. They need to understand what good looks like, and what you’ll be measuring their performance against. Finish the conversation with this but also make it clear that, should the expectation not be met within a defined time period, you may need to move to the next stage of your performance management policy.
No matter what stage you’re at, this is a good structure for those conversations.
We have a member of staff in her 70s who has been with the practice for over 25 years. Recently her performance levels have dropped, and she does half of what she did before. The partners want me to performance manage her but I’m worried this could be bordering on age discrimination as her performance has never been raised before.
The removal of the ability to enforce retirement at a particular age has left many employers in this situation. Whilst it should never be assumed that anyone over 65 should be put out to pasture, so to speak, as many over 65s are still fully capable of working, it did remove the ‘easy way out’ for situations such as these. Performance management then became the standard way to manage people whose performance was declining as a result of their age. And I totally understand how it can feel uncomfortable.
Firstly, it’s never too late to start performance management but you need to start at the beginning of the process so have a chat informally with the employee about your concerns as we’ve outlined previously. Then follow your process as you would for any other member of staff.
Whilst age is a protected characteristic in terms of discrimination, you’re not discriminating against a staff member by performance managing them provided there is evidence to demonstrate that their performance is not up to par. As long as you’re offering them support to improve, as we have outlined, you’re acting reasonably. You should avoid making any reference yourself to age being a factor in their underperformance – quite often you’ll find the employee makes that link themselves! You don’t even have to agree with it – just ask them how you think that impacts on their ability to do the job and whether there’s anything the practice can do to help them to improve.
Their answer is “I’m trying to do it properly”. What do you say to that?
Sometimes you’ll come across staff who simply don’t have the ability to do the job and that’s where this process really comes into play. When I was working as an HR advisor at my local hospital trust, I had one case of a newly qualified nurse. Goodness only knows how she’d managed to achieve a pass at university as she struggled with drugs calculations and managing more than one patient at time which, given that her role was on a busy paediatric ward, was not something that could be accommodated. I supported her managers through the process, setting her targets to achieve, implementing additional training but she just couldn’t get it and so failed each improvement plan we put in place, escalating her up through the trust’s performance management policy. She ended up in front of a hearing which determined she wasn’t capable of doing the job and therefore her employment as a nurse was terminated. In this instance, we also had to refer her case to the NMC to review and they eventually suspended her PIN while she underwent further training. It was very sad as she was a lovely girl and really wanted to be a nurse but unfortunately she just couldn’t meet the standard, no matter what we put in place to support her. In the end, she worked as an HCA for a number of years which really helped to boost her confidence and was later re-assessed by the NMC and had her PIN reinstated.
Your role in this is to find out why they think it is they can’t do it properly and, if there’s no obvious reason or nothing you can do to help them to improve, then you just have to follow your policy to its conclusion.
Do you have a performance management policy that can be shared?
There are a number of useful resources, including:
Performance management – Capability procedure [PLUS]
Management by objectives policy [PLUS]
Performance management documents [PLUS]
How about when a member of staff has mental health issues?
So we’ll answer this question by referring to any health issue – be that mental or physical – because you would approach this in the same way.
It’s more common than you think for a performance issue to be caused by a health problem whether that’s a receptionist struggling on the phones due to anxiety, or a nurse struggling with dressings due to a back problem – the reasons can be wide-ranging. However, you still need to manage the issue. The job still needs doing.
There are often a lot more things you can do to support a staff member with a health problem compared to those with just a lack of ability. So I’d strongly encourage you to talk to them as early as possible and discuss what could be done to help them. It might be that the receptionist can do more prescription admin to have less exposure on the phones, or the nurse could have some equipment to make it easier to do dressings without bending or kneeling down so often. But you won’t know until you ask!
You also need to remember that a health problem may be classed as a disability depending on how long it’s been a problem or the severity of the issue. You therefore have a legal obligation to make reasonable adjustments for that employee so you may have to go further in supporting the employee than you would another staff member, and you may even have to accept a drop in performance to a certain degree (for example, giving some tasks to another member of staff and simply not expecting the employee to do them might be deemed a reasonable adjustment if the practice could accommodate this). You’d also look to extend the timescales of the review period to allow increased time for improvement.
The most important thing to do is have the employee assessed by Occupational Health and don’t be afraid to ask direct questions! Send a copy of the job description with your referral so the Occupational Health clinician knows what’s expected of the role. Ask them directly if there are any elements of it that the employee needs support to complete. Highlight where the areas of concern around underperformance are. Occupational Health can be really helpful at times in recommending things you can do to help the employee to improve their performance.
If there’s nothing you can do, or you’ve implemented all that you can and the employee still can’t perform, then you would still need to follow your policy through to completion. You just need to ensure that you’ve done what you can, sought medical advice via Occupational Health and given the employee the opportunity to improve with support put in place where appropriate. Ensure everything is documented for evidence.
Where does menopause fit in with new guidelines coming out?
Much like any health problem as mentioned above, menopause is something we know of that can impact on an individual’s performance. I’d recommend having a workplace menopause policy which can help to manage expectations for both the employer and the employee.
Some women might experience a detriment to their health as a result of the menopause for longer than 12 months which could then see it being classed as a disability under the terms of the Equality Act 2010. So, similar to the point made above, you’d need to consider reasonable adjustments for the employee. However, you’d still manage the employee the same way as you would any other employee with a health condition.
What if an employee goes off sick after a performance review?
Sadly this can happen quite a lot. However, in these circumstances the performance management process would be paused and your absence management process would take over.
It’s worthwhile explaining to the employee that the performance management process isn’t going away however, and will resume on their return to work. Remind them that the aim of the process is not to punish them for underperforming, but to seek to help them to improve their performance and reach the required standard for their role. If they’re able to do this, then the process goes away. Reinforce that you want to know what can be done to help them and you can’t do this unless they are able to meet with you, discuss what’s available and set a plan into action for them to achieve. Generally, once they know that you won’t just drop it, they return to work. If they don’t, then following your absence management process either leads to them returning or… well, not!
As things in the NHS get busier and busier, how can you respond to someone who says your expectations are just too high?
This is a really valid point! What I would say is to seriously consider it – are your expectations too high? Too often the scope of our roles quietly creeps and expands and we frequently don’t realise this. Before you know it, you have a lot more work on than you used to, and you’ve just picked it up and carried on without realising it. So I’d want you to seriously consider whether you’re asking too much of someone. If the answer is yes, then what you really need to be doing is reviewing the roles, the structure you have in the practice and whether anything needs to change.
In the event that the answer is no, then it’s good to respond back to the employee showing them what you’ve considered and asking them to quantify why they feel expectations are too high. If you feel you can confidently challenge those expectations then do so but remember to justify what you’re saying.
If someone is on their final written warning for behaviour, can we dismiss them for their performance after several meetings?
This goes back to the point we made earlier – you can only dismiss someone for one reason. So, if the performance isn’t linked to the previous conduct issues, then you can’t. You can dismiss them for poor performance if you’ve followed your policy to its completion, but you can’t conflate the two policies.
I’ve recently joined a practice that had not had a manager for over a year. On the whole I’ve inherited a good team but there’s one receptionist who had her probation signed off by a partner just before I started. She should have had it extended. What can I do?
First of all, don’t let your partners get involved in staffing issues going forward!!
Sadly, now her probation has been passed, you can’t terminate her contract without following your policy and giving appropriate notice. I mean you could, given that she has less than two years’ service, but you need to be 100% certain that she couldn’t claim discrimination against you, and it might hurt the reputation of the practice or leave a bad taste in the mouth of other staff to see you not following your own procedure.
I’d also want to be certain that she definitely can’t do the job. It sounds like there’s been a lack of management during her probation and this might have contributed to her underperforming. It might be that, with some guidance and support from you as a new manager, she could turn things around!
How much evidence do you need to end someone’s contract during a probation period if they continue to underperform despite informal and formal meetings to address the issue?
Sounds like you’re already there! If you’ve raised it informally, and then formally (which I assume means making it clear that a lack of improvement may lead to the employee being dismissed) and you’ve documented all of these meetings, then you’re good to go!
Robyn & Susi’s personal musings on performance management
It’s important to instil a culture of tackling issues really early on. Too often we see managers launching into a formal process in a sort of ‘straw that broke the camel’s back’ sense. By that point the manager has often had enough and has already decided the employee has got to go. From the employee’s perspective, this can often mean that a formal process feels as though it’s come completely out of the blue and can even result in them making a claim against the manager for bullying.
By picking up on issues as they occur and aiming to look for improvements, whilst gradually formalising the process if those improvements don’t occur, you can demonstrate to the employee that you’re genuinely trying to get them to improve and support them to achieve what you need from them. Should they not be able to, further formal action shouldn’t come as a surprise.
Links to useful documents
Disciplinary policy and procedure [PLUS]
Sickness absence management policy [PLUS]
Menopause and the workplace policy [PLUS]
Time off for dependants policy [PLUS]
Performance management – Capability procedure [PLUS]
Management by objectives policy [PLUS]
Performance management documents [PLUS]
Our HR Masterclass includes a module covering all aspects of performance management, as well as modules on other important topics, including recruitment, managing long-term absence, disciplinaries and managing short-term absence.
The HR Masterclass is an online course delivered in the HUB. For existing Practice Index Learning subscribers, this module is now available in your course list.
If you do not have a subscription to Practice Index Learning and you would like further information or would like to sign up, click here.
We have two further HR clinics coming up soon:
Managing conduct and the disciplinary process – Wednesday 19th October at 12.30pm
Managing persistent short-term absence – Thursday 24th November at 12.30pm
We are looking to host HR clinics on a number of topics. Do let us know in the comments what other topics you’d like to see covered in future sessions.
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