Published by: Alec Colson

Handling Poor Conduct and Poor Performance

Dealing with the staff conduct and performance issues can be daunting, stressful and time-consuming particularly where the employer has no HR support to call upon.  To make matters worse, if the outcome of the disciplinary action is a dismissal and the employer has unreasonably failed to comply with any provision of the ACAS Code of Practice on disciplinary and grievance procedures an Employment Tribunal may increase an unfair dismissal award by up to 25%.  Therefore, there is a financial incentive for employers to ensure that proper and fair procedures are followed.

Although an employer may have strong grounds to take disciplinary action against an employee,  mistakes are often made by not following the correct procedures or following the procedure only to make mistakes by overlooking important aspects which are critical to the fairness of the procedure. Errors often occur because the employer is not entirely sure how it should handle a particular situation or gets into difficulties part way through the procedure because it has not thought through the process. For example, by not making it clear what the allegations of misconduct or poor performance are, or the allegations are not backed up with evidence, by not identifying from the outset who will undertake the investigation, who will be the disciplinary officer and who will hear any appeal. An employer needs to think through carefully how the misconduct or  poor performance will be handled and not take short cuts thinking it will not matter.

Disciplinary action may not be required in the initial stages and poor conduct or performance issues can be dealt with by alternative means such training and/or additional support. However, if performance or conduct does not improve or there is evidence of gross misconduct, the employer will need to invoke its disciplinary procedure. This should not be undertaken in a haphazard way or made up as it goes along. In order to defend an unfair dismissal claim the burden of proof is on the employer to show that it has followed a fair procedure and it is often this aspect, particularly amongst small and medium sized enterprises where mistakes are made.

Employees need to know what they are being accused of with supporting evidence. This requires clear written communication which is likely to involve witness statements from other members of staff particularly where poor conduct is being alleged. A proper investigation will have to be undertaken and the written statements prepared so that the employee can   respond to the evidence in a disciplinary meeting must be arranged in accordance with the ACAS Code.

In our workshops, ‘Handing Misconduct Issues’ with ‘Confidence and Handling Performance Issues with Confidence’, we provide employers without HR support the required information and guidance about how to handle disciplinary issues by way of discussion and case studies so that the participants will have the confidence to deal with misconduct issues and poor performance in their workforce - please see our website for more details -