Good afternoon, everybody, and welcome to this Mills & Reeve employment podcast. My name's James Faradjollahi. I'm a principal associate, working out of the Leeds office, and I'm joined by my colleague today, David Gibson.
I work in the Leeds office as well, alongside James, and I'm a consultant with the team.
So I think the purpose of today's podcast is to have a general discussion around performance management, capability issues in respect of employees not necessarily performing what they're employed to do. But also looking at how disabilities or medical conditions impact that process, and what you can do and what we would advise you to do as employment lawyers in that type of scenario.
So that's what we're going to talk about today. It's very hot here in Leeds. The office conditions are far from ideal, hence why we're out in the foyer. David has just smashed a chocolate ice cream. In a record time. And it's all gone so quick. It's a really fascinating area and I've been practicing employment law now for 20, 30 years or so, and it's interesting to see how certain themes have developed over those years into how you manage people on short-term sick leave, long-term sick leave, and those that are already classified as having a disability.
And the big area of concern is those short-term periods of absence that all of a sudden start building up and you think maybe this person's a malingerer or sort of just trying it on, but actually there's an underlying disability issue there. And I think, James, that's one of the great challenges that we face in actually identifying what we're dealing with when we're dealing with the problem.
I think there's a lot of people who are generally poorly, ill, have conditions, need help, need adjustments in the workplace. But also from what I'm seeing as well, probably since COVID times, is that we're seeing a lot more people trying to use conditions to leverage their position to either bolster an employment tribunal claim or get to a goal that they want to arrive at, with it not necessarily being by honest means or whatever.
And I think it's trying to, to sort out the genuine people versus the people who are trying to try on claims. But yeah, there's never, there's never a silver bullet for any situation. I think that each case presents its own unique difficulties, unique sets of facts. And yeah, it's how we manage as a business.
And I think first and foremost, you need to take a step back of the situation, assess the whole narrative, and look to start meeting with the individual to understand what's going on, what's at the heart of the issue, and how you can work with each other as an employer and an employee. Yeah. That's spot on.
I think that whole piece, there's three points that I think are really important for employment lawyers in dealing with these situations. First of all is engagement The second point is in terms of flexibility, and the third point is in relation to responsibility. And just touching on that, looking at that engagement point, it's not about hiding behind medical evidence all the time.
It's actually having that discussion with the GP records, consultants reports, that type of stuff, and then coming to an informed, rounded view. Once you've engaged on that deep level, that's when you actually get to the root of the issue and start looking to where flexibility should come in, how flexibility should come in, what type of flexibility is going to work in those set of circumstances.
And then finally, that important point is about responsibility. We talk a lot about responsibility on employers, and that really is key. We're aware of that because of our statutes, but there's also a responsibility on the employee to be acting in an appropriate way as well. But I think that engagement from the start so what you're dealing with, you can use that as a route map to getting it forward.
Number one, it can lead to better performance management, but number two, it can lead to better defensive employment tribunal claims coming through as well. Yeah, 100%. So performance management then, we will regularly receive phone calls from HRDs, HR business partners, HR managers, so on and so forth, and saying, "We've got an issue with this guy, or girl" and want to get rid of the individual not performing well, and it's a case of, right, well, what steps have you taken as the employer to be able to make a decision where you can safely, insofar as you're able, to actually dismiss that individual? And the big piece of advice from me in respect to performance management is contemporaneous documentation.
Setting out either an email, a file note, a letter, whatever it might be, setting out what your concerns are with this individual, what needs to be done, and if necessary, flowing from that, that's when you look at performance improvement plans and document it really, really thoroughly on that base.
I think to dismiss employees for capability, specifically around performance, is probably the most difficult.
Yeah. Because it can be quite a subjective sort of task and process. And, and in particular with what's on the horizon with the new unfair dismissal rights, it's going to be so important that we are really documenting our concerns around the performance, giving really specific examples, and, and ultimately showing, well, a tribunal or whoever might be looking at it, that as an employer, we engage with that employee, as David was saying, and we look to sort of help and assist that individual.
And that doesn't have to be an employee that's necessarily got a disability under the Equalities Act, that's just in general. But what does add a complication to that is when you have an employee not performing well, but who may have a disability such as anxiety, stress, it could be a physical condition, ADHD, so on and so forth, and I think that's where it becomes a little bit more tricky, but not impossible- True- to manage and to deal with. I think that's an excellent point, and one of the points James was making there as well is really sitting down with the employee and analysing where those failings actually are. Now, it may be the case that they haven't been trained properly. It may be that the induction was very poor.
It may be that their skills matrix is a little bit rusty and they need that extra support. Or it may actually be a failing of the management themselves in not actually giving the level of support to enable that person to blossom. So you need to sit down and have that conversation, and at the same time, the proposals that they come up with, if they do need extra training, etc.,
Have to be realistic when it comes down to it. Sending them on a four-week course to Barcelona might not be realistic in the circumstances, but it's got to be realistic and tailored. And if you do offer that support, make sure it's followed up as well. You don't want to get into the situation where you say, "Yeah, we'll offer this training, we'll offer this support," and it never happens.
If it's not happening, why is it not happening? And I think that's why Jim's point is particularly important. You document everything, you diarize everything, you follow it up, so you've got a paper trail in relation to that particular individual. Because if you fail to do so, then you fail to actually provide the adequate level of support that you should be to the employee, which will not really reflect very well on you in employment tribunal, so it's key to get it right.
I think the other thing as well that is difficult is getting the occupational health advice, which is great, and it's a good, positive, proactive step to take- Yeah because you do need that medical advice and insight so that you can performance manage and look to adjust any workplace practices. But the key thing I think employers miss out on is their instructions to the occupational health advisor.
Sending an employee off to speak with occupational health for half an hour can probably because more damage than good, because what we often see is just the occupational health advisor regurgitating what the individual was saying. Whereas if you have very specific tailored questions- to this individual, to the issues that you're seeing, to the, the factual matrix of what's going on.
I think that will be really helpful in giving you the information that you need to deal with the situation, and once you've got that and then you implement what Occu health is saying, but then the individual still isn't performing or still doing what they shouldn't be doing, then again, that's a really helpful tool for you to use in terms of actually performance managing the individual.
And again, if you are minded to dismiss, you've kind of got a really rogue procedure in play which you can then rely upon any subsequent, ACAS early conciliation or tribunal. Yeah. You can tell we're employment lawyers, because we're scared about the employment tribunal and trying to keep you guys out of it.
But yeah, it's definitely tailoring that occupation health instruction is a key piece of advice for performance managing employees, I would say. Absolutely. And making sure that occupational health report is up to date as well. There's no point relying on an occupational health report that's 12 months old because things might have moved on.
So even if you go for a second report, even a third report which is more recent, then ultimately that gives you bit better protective cover in understanding what the nature of the problem is and how the condition may or may not have evolved over time. Because what may be working back in January 2024 may need to be amended in May or June 2026.
So keeping it up to date, keeping the questions relevant, keeping them focused, interrogating the occupational health report as well. And not being frightened to do, that helps you get to the root of the problem, root of the issue so you can get your game plan in place on how to deal with the person's improvement.
Yeah. And then the other point for me is it, it's around timing.
Performance management is not a quick process by any stretch of the imagination. If you implement a performance improvement plan, you'd normally expect that to be a good month or so. Absolutely. You know, if you're implementing adjustments for individuals who have disabilities, again, you need a, a fair and reasonable, a fair and reasonable timescale to actually allow those adjustments to be implemented and to see how the individual reacts to them in the day-to-day job.
It's not an overnight process. These things do take time, and the longer you can implement the adjustments and demonstrate that, look, they're still not working even with these adjustments in place- Well, you'll be on stronger grounds in the future. And I think the other point to take away is with the reasonable adjustments point and the performance improvement process is, yes, to keep documenting that, but to also look at other wider opportunities.
So it might well be that if the individual isn't performing well, is there another role within the business? Is a demotion a possibility? You know, you can't just jump straight to dismissal. You need to factor these points in. And again, I don't think that's necessarily for people with disabilities. I'd say that's across the board really.
Yeah. Because ultimately, you've invested very heavily in bringing this person within the organisation. They may be the type of employee that has started very well and then there's been a fade off in performance, or they haven't started as well as you anticipated. But still, your, your employee and you've got a responsibility towards them.
So putting that game plan in place can see people grow and flourish, but also enable you to see maybe weaknesses within your organisation as well, because it may be that a certain department has a traditional problem with a certain type of employee, or it may be that a certain line manager has difficulties as well.
So it's a 360 review process that's enabling you to become more efficient and more productive in dealing with your labour force. Yeah. I mean, not every client that I deal with has a dedicated performance improvement process and procedure. And again, I think with what's on the horizon with the, the unfair dismissal rights, it's really important that you should have that policy and you review your policies and procedures in respect to performance management as well.
Yeah. Because let's face it, conduct is relatively straightforward. If I were to just whack David now, I'm pretty sure I'd get the sack for an act of gross misconduct. Whereas performance-related issues is much more nuanced and I think having a really structured approach to it is a good thing around timescales- Mm-hmm- rocky health warnings maybe, improvement periods and so on and so forth. So there's some practical tips to enable you to ensure that a sick force is turned into a workforce, and also that you're utilizing the full skills and talents that you've brought into the organization to ensure that the business flourishes and also you avoid having to deal with any employment tribunal claims.
So I think that brings us to the end of this Mills & Reeve employment podcast. Thank you for joining us. Please do follow and subscribe to this podcast if you haven't already done so. If you'd like to keep the conversation going and share your thoughts, please reach out to us on LinkedIn through our contact details on the Mills & Reeve website.
Thanks for watching. Thank you. Cheers.