Performance Management or Disciplinary?

Posted in : HR Updates on 10 September 2012
Nicola Shaw

Nicola Shaw writes:

As HR Practitioners, we are used to dealing in non-absolutes. By this, I mean that our world is not black or white; rather it is lots of shades of grey (and no, I do not mean THOSE books, which for the record, I have not read – YET!!). Very few, if any of the decisions we are involved in making are absolute and are a clear-cut 100% yes or no. We have to take so many factors into account:

  • Company policy
  • Customs and Practice
  • Precedents
  • Legislative developments
  • Case law
  • Best practice
  • Etc
  • Etc

It is being aware of; and respectful towards the above that enables us to add value in our roles.

Over the years, when there is an issue with an employee, a Manager will normally say “we need to discipline this person” (or worse) and actually, when it comes down to it, discipline is not the appropriate policy to use at all. When we review the information available at that juncture, it may transpire that the issue(s) does not fall within the remit of the disciplinary policy; but rather the performance management procedure.


Starting Point

I ask the Manager to provide me with the following:

  • The background within the Department and how processes and relationships typically work
  • An overview of the current position

This provides me with much needed insight into the situation and also lets me assess if the manager has acted in a fair and consistent manner thus far. I’ll chat things through with them and then ask them to follow-up with me in writing. I find this tends to be less emotive than just a verbal overview and allows me to assess the information in isolation before responding with any arising questions and comments before we determine how best to proceed.


Did I Just Say "We"?

Yes, I did – deliberately so. My position is that I can advise on risks, provide guidance, make recommendations on how best to proceed; but that I am not the decision maker, because I am not the business owner.

I will take ownership of the HR component of the process and ensure procedure is followed, but I do not have responsibility to chair any resulting meetings. Nor is it me who signs the outcome notification – though I very often draft it. Therefore, it is my opinion that there has to be ownership and joint responsibility in managing the process, irrespective of how much the manager tries to pass it across to us in HR.


Definitions

I define performance management and discipline as follows:

Performance Management:  This procedure is used to manage situations where an employee’s performance is below the required standard.

Disciplinary:  This procedure is used to manage poor or inappropriate behaviours or instances of misconduct such as violence, dishonesty, timekeeping, failure to adhere to the Firm’s policies, etc”

For example, if there is a scenario where someone has had improvement points highlighted in their appraisal and subsequently there is a reoccurrence, or deterioration in performance, such as a complaint from a client for example, which focuses on the points raised in the appraisal, then I advise that we use the performance management procedure.

If however the complaint focused on rudeness, or inappropriate behaviours, then the disciplinary procedure would be used.

Irrespective of which procedure is used, the business has discretion to determine the level at which the procedure is initiated i.e. from informal “chat” to formal, and within formal there are various stages, ranging from verbal warning, written warning, final written warning and dismissal.


Reaching Consensus

Once I have clarification on any points I raised on the initial written summary from the line manager, I then meet with the manager and relevant others within the management chain responsible for determining the approach; and together, we review the evidence available and assess the level/seriousness of the issues. If there is a clear consensus and initial evidence appears strong, then we progress with the appropriate process:

  • Investigation
  • Hearing
  • Further investigation/review of full evidence
  • Outcome
  • Appeal (as appropriate)


Final Thought

Never rush into a process: assumptions are dangerous and tend to be the downfall in any appeal someone may make. Try and take a step back and not be swept up by emotions from others. Our job is to do the right thing and to do it well through following our own procedure in a methodical and thorough manner. Depending on the size and scale of your company and of the HR Department, it may be easier said than done to remain detached and objective, but that is one of the most important aspects of our jobs. It may even be our saving grace!

This article is correct at 09/11/2015
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Nicola Shaw

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