Eliminate under-performance at work

Apr 03, 2018
Poor performance can be costly, so here is a three-step process to help you address the issue.
BY GERARD McMAHON
To the annoyance of many employers, the chances of being deemed to have fairly dismissed an employee on the grounds of poor performance are slim. For example, as far back as 2005, the Irish Business and Employers’ Confederation (IBEC) warned its members that dismissal on such grounds is difficult, as it’s a long and drawn-out process with little guarantee of a successful outcome.
Research recently completed at Dublin Institute of Technology confirms IBEC’s warning. From a representative sample of almost 400 dismissals contested before third parties in recent years, performance, performance management or performance appraisal and associated management best practice(s) were influential in just 5% of the judgements. And even then, not all of the judgments went in the employer’s favour. In an effort to address this issue, the practice of deploying a performance improvement (or expectation) plan (PIP) has now emerged as a means of addressing underperformance.
According to the Society for Human Resource (HR) Management, a PIP “is a great way to give struggling employees the opportunity to succeed while still holding them accountable for past performance”. IBEC also recently reported that PIPs “are an increasingly common tool utilised by employers to manage cases of poor work performance”. For example, the Irish Civil Service now applies PIPs to those “who have not improved following interventions made through regular performance management processes”. According to the Department of Public Expenditure and Reform, this new PIP regime is “built on principles of natural justice and closely reflects good HR practice in other sectors”. Under their PIP scheme, underperformance issues are handled informally initially, but if unresolved, the PIP kicks in and can progress for up to five meetings. If, by the end of the PIP process, performance has not improved, the employee can be fairly dismissed.

The law and PIPs

Significantly, the PIP practice and process featured recently in dismissal cases coming before third parties. For example, late last year an adjudication officer at the Workplace Relations Commission (WRC) upheld the employer’s decision to dismiss a supervising pharmacist after he failed the PIPs he was put on. The adjudicator noted that the employer provided the complainant with ongoing mentoring and support throughout the PIP period and that it had even extended the plan’s duration on his request. She also noted that the employer’s procedures “were clear and detailed and were available at all times to the complainant” and the pharmacist had been informed of his performance issues, what was expected of him and the consequences of not achieving his PIP.
At around the same time, another adjudicator at the WRC found an employer’s dismissal of an accountant to be fair, where the process included the application of a PIP in a process that was deemed reasonable and in line with procedures and natural justice. The adjudicating officer recorded that the employer had used PIPs with other employees and had tried to use one with the accountant who didn’t cooperate, as he claimed that it was “rigged”.

Real commitment

Of course, to succeed in a contested dismissal case, it is important for the employer to be able to show that they are committed to the PIP process. Otherwise – like in the 2009 Boston Scientific case – it may be held that they produced “no evidence... to show that training was made available to the claimant to address his shortcomings”. A similar deficiency in such scenarios surfaced some years later when the Employment Appeals Tribunal determined that the Irish Wheelchair Association should have “engaged more constructively” with the claimant around the implementation of the performance improvement process.
However, where it can be shown that the employer implemented a PIP and, as noted by the Employment Appeals Tribunal in another case, “behaved reasonably at all times and did its utmost to support the claimant... affording him every opportunity to adapt to the particular requirements of the respondent’s business”, the decision is likely to go in the employer’s favour. Google (Ireland) Ltd. also relied heavily on their PIP in a case reported earlier this year, where they successfully defended a discriminatory dismissal claim at the WRC.

Perfect PIPs

However, research confirms that a significant obstacle to effective PIPs, and the associated coaching input, is that managers are often neither interested in – nor capable and confident enough about – the practice. This has significant implications for the organisation attempting to tackle underperformance. To maximise the prospect of a successful PIP, the following guidelines should be applied:

Before the meeting

First, assemble and review all of the relevant evidence relating to the employee’s past performance (e.g. performance management forms, interim reviews, job description/role profile, performance and development trends). Then, as part of the information gathering process, ask the following questions:
  • Is the problem attributable to the employee’s performance and/or attitude?
  • At what point did the employer become aware of the problem?
  • What was done about it?
  • How did the employee react when advised?
  • Has the problem been raised by others?
  • To what extent have the employee’s specific, measurable, agreed, realistic and time-bound (SMART) objectives been achieved?
  • What examples are there of poor performance?
  • Did the employee fully understand what they were expected to achieve?
  • Were these expectations reasonable?
  • Did the employee get sufficient support from their manager and colleague(s)?
  • Does the employee have the ability to bridge the gap and perform effectively in the role?
  • How are others in equivalent roles performing?
  • In the course of previous exchanges, has the manager been successful in obtaining agreement on the cause of the problem(s) and what will be done about it? What happened?
  • Is this a problem warranting external help (e.g. counselling)?
You should also agree the meeting time and place in advance with the employee.

During the meeting

  • Encourage the employee to diagnose and prescribe in respect of the problem performance;
  • Ensure that the employee understands the reason(s) for devising a PIP;
  • Focus on facts, not personality (e.g. the SMART objectives set at the last review);
  • Adopt a positive and progressive attitude, along with a calm and professional disposition (note that this is not a disciplinary meeting; it should be part of an ongoing constructive coaching relationship);
  • Set and confirm the SMART (performance and development) objectives;
  • Ensure that the employee understands the implications of continued underperformance vis-à-vis the organisation’s disciplinary/dismissal procedure;
  • Confirm the required support actions/resources;
  • Agree the improvement timescale/review schedule and diary it; and
  • Keep a signed record of the meeting and the agreed actions/outcomes and furnish the employee with a copy.

After the meeting

  • Follow up and deliver on the promises made at the PIP meeting (e.g. support actions, resources, reviews etc.);
  • As part of the review process, give specific feedback vis-à-vis the SMART objectives, ensuring that the employee is made fully aware as to whether they are adjudged to be making the required improvement;
  • Update the employee’s SMART objectives, bringing them to an acceptable level (e.g. vis-à-vis peers’ performance levels) while maintaining a coaching and monitoring role;
  • In the event that no progress has been made under the PIP, confirm and diagnose the persistent performance gaps and determine whether new or revised SMART objectives or an updated PIP is required. The consequences for the employee of continued underperformance should also be confirmed. It may also be decided to progress matters via the disciplinary procedure. The relevant follow-up actions/supports should be confirmed with one’s manager and the HR professionals; and
  • In the face of persistent underperformance, convene a meeting under the organisation’s disciplinary procedure.
Dr Gerard McMahon is Managing Director at Productive Personnel Ltd.

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