Performance, and how it is measured and managed, can be the cause of some of the most common concerns for employees in the workplace.
There are two main types of performance concern, for which you might need to challenge your treatment and require representation:
- Where you are given a lower performance rating than you deserve. This might not only lead to you losing out on pay increases, bonuses or promotion opportunities you deserve. It could put you at risk of losing your job if your employer has to decide who to dismiss in a redundancy situation. Or be the prelude to wider criticism of your contribution.
- Where your performance is criticised. You could find yourself at risk of being ‘managed-out’ on performance capability grounds, if your manager says you are not meeting your employer’s performance expectations.
Of course, it is possible that you might not be performing satisfactorily. But there is also a chance you could suffer the consequences of unrealistic targets and expectations, poor management style, a personality clash or bullying.
Whatever the circumstances, you must utilise your company procedures to fight your corner and limit the chances of being treated unfairly. WRS can help and support you with this.
Unfair performance ratings and reviews
Pay increases and bonuses you receive could be linked to your manager’s assessment of your performance.
This can leave you at the mercy of poor management. Especially if your performance has been insufficiently recognised or unfairly criticised. Or your manager has provided you with inadequate direction, feedback and support.
The cost to you of not having your performance managed fairly could amount to many, many thousands of pounds. Even the loss of your job.
If you are unhappy with how your performance has been managed, or the appraisal rating you have received, you have a right to challenge this through your employer’s grievance procedure. Alternatively, your company may have a specific process for challenging the fairness of your rating as part of its performance management guidelines. This will mirror the formal requirements of a grievance procedure.
To pursue a performance complaint, you should take the following steps:
As with any grievance complaint, good preparation is fundamental to your chances of success.
Examine your employer’s performance management policy to be sure you are aware of the requirements applying to both you and your manager. You will then understand whether your performance has been managed and appraised correctly.
Also collate evidence of how you have performed, any unforeseen challenges you have faced and ongoing feedback that you have received from your manager. This could be in the form of:
- The performance objectives you were set at the start of the performance period
- Performance appraisal records
- Emails, meeting notes and any other documentation relating to your performance
- Feedback you have received on your contribution – whether from your manager or internal and external stakeholders (i.e. colleagues or customers)
You should raise any concerns over how your performance is being managed as soon as you recognise this could be problem. Don’t leave this until when you finally receive your appraisal rating – unless, of course, it comes as a complete surprise.
Confirm in writing any conversations you have with your manager on your performance, so that you can produce this as evidence later if required. Not only does this put on record your concerns. It also gives you the opportunity to understand and challenge any explanation or excuse your manager provides.
This evidence will all be important when preparing your Written Statement, ready for any formal meeting to discuss your performance.
2. Informal meeting
Ask to meet with your manager to discuss your concerns. Once you share these, it may be all that’s required to get your appraisal feedback or rating improved.
Confirm in writing the content of the meeting and your interpretation of what was discussed. If your manager doesn’t respond, yours might be relied upon as the only accurate record of what was discussed.
3. Make a formal complaint
If your concerns remain unresolved, initiate your employer’s grievance or performance management procedure. This will entitle you to a Formal Meeting to discuss your concerns.
To do this, provide in writing a short overview of your concerns. This should consist of just a few bullet points briefly detailing your complaint. State that you want an independent hearing manager to be appointed to hear your case. Also, that you will be exercising your right to be accompanied by either a work colleague or representative of a union. WRS can help you prepare this letter.
Some companies like to avoid having Formal Meetings because they are uncomfortable being subjected to too much scrutiny. Don’t let yourself be palmed off – insist upon your legal entitlement to a Formal Meeting.
4. Written statement
For your very best chance of success, we recommend preparation of a detailed Written Statement setting out your concerns in a structured and persuasive way. This can be presented at the start of your Formal Meeting.
This will be crucial to ensuring that your concerns are fully understood and presented in the most effective way. We explain the importance of a Written Statement here – and why you should not give your employer a copy in advance of the meeting.
If you are being supported by WRS, we will produce a carefully constructed and compelling Written Statement on your behalf. This will based upon the information you have collated at the preparatory stage of this process.
5. Formal meeting
There will be a Hearing Manager and at least one other person to take the notes – possibly from HR – attending the Formal Meeting on behalf of your employer.
At the meeting, you will be able to set out your case by presenting your Written Statement. You may also be asked a series of questions by the hearing manager.
You have a right to be accompanied at this meeting. Given the imbalance in the number of attendees – and to avoid you feeling too intimidated by the process and to have an independent witness – we urge that, at the very least, you are accompanied by a work colleague.
However, it is best that you are accompanied by a representative of a trade union, WRS can arrange this for you if you have not previously been a union member. Your union specialist can ensure your case is presented in the most effective and persuasive way. Our representatives have an exceptional record of winning performance cases.
Shortly after the meeting, you should be sent a copy of the minutes. You will be given the opportunity to agree the content, or ask that changes be made to ensure their accuracy. Failure to respond will equate to you accepting the minutes.
It is important that you are satisfied that the minutes are correct. They will serve as key evidence if you choose to Appeal or pursue legal proceedings.
Within two weeks of the Formal Meeting – although potentially longer if the hearing manager is delayed in conducting further investigations and witness interviews – you should receive an Outcome Letter. This should set out the hearing manager’s assessment and decision on your case.
Like any grievance proceedings, you have a right to Appeal if you are dissatisfied with the hearing manager’s decision.
If you do, the same process will apply as for the original grievance hearing. But this time, the focus of your Written Statement will not be upon re-hashing your original arguments. Instead it will be to challenge the reasonableness of the hearing manager’s decision; taking account of the evidence presented to them and their justification for their decision.
You again have a right to be accompanied. The Appeal Manager should be independent of, and more senior to, the original hearing manager.
8. Still unhappy?
If your appeal is also unsuccessful, you may have grounds for pursuing legal proceedings. This will depend upon a series of factors, including:
- Whether your bonus arrangements are contractual
- How reasonably your concerns were addressed by the hearing and appeal managers
- Whether procedures were correctly followed.
However, if you have presented a well-argued case and potentially have a legal case, your employer might consider a Settlement Agreement in order to reach an amicable settlement with you. Of course, this must be purely consensual.
In our experience, in most cases where it becomes obvious that a performance review or rating has been unfair – or that an individual has not received the managerial direction and support they should have – a successful conclusion is eventually reached.
Alleged underperformance and performance improvement plans
If your employer claims you are not meeting its performance standards, there is a danger that you could be placed in a process that could eventually lead to your dismissal on performance capability grounds.
This is why we recommend you should insist upon being accompanied at any Formal Meetings where your performance is being criticised. If you are not already a union member, WRS is able to arrange for a union specialist to represent you.
Typical causes of criticism
There are many reasons why you could find yourself in a position where your performance is being unfairly criticised:
- Perhaps you have moved into a different role. Or your responsibilities have changed. Or maybe you feel your manager has ‘got it in for you’ and is attempting to ‘manage you out’ of the business.
- You may have been suffering from ill-health, work-related stress or other problems that have interfered with your ability to perform as well as you are normally able to. Such circumstances could merit mitigation when deciding how well you can be expected to perform.
- A long-term condition, lasting more than a year which could qualify as a disability under the Equality Act 2010, may also have restricted your ability to perform. This could require ‘reasonable adjustments’ to how much you can be realistically expected to achieve.
- Your targets and objectives could be unrealistic, or there might be circumstances beyond your influence or control that restricted your scope to perform.
When commencing proceedings for underperformance, your employer must document – supported with evidence – precisely how your performance is not meeting expectations. What more you are expected to achieve. How you will be supported. And the time within which improvement is required. You must also be told the consequences of not meeting your employer’s expectations.
Any such process must be managed clearly and transparently. It must also meet the requirements of the ACAS Code of Practice.
1. Informal meeting
At first, your manager should informally alert you to any alleged concerns about your performance. This could involve you being put on some sort of informal performance plan during which your contribution will be tracked and you will receive feedback. This is the only stage where you might not have a right to be accompanied.
2. First formal meeting
If your performance is said not to have improved since concerns were informally raised about your performance, a Formal Meeting may be held.
Here, a structured formal Performance Improvement Plan could be discussed and introduced. This will involve your manager identifying where there are alleged shortcomings in your performance, what you need to do to address them, the support you will be provided to succeed, and a timescale (typically between 3 and 6 months) within which you must exhibit a satisfactory improvement.
It is important that any performance objectives you are set are reasonable and achievable. You should only sign a performance plan if you agree they are.
Being well-prepared for this and subsequent meetings is essential. See our earlier guidance on preparation for a performance complaint.
You have a right to be accompanied at this meeting and (if you have one) for your representative to professionally present your case on your behalf.
The outcome of your meeting – and details of your performance improvement plan – must be documented. It may involve you being issued with a First Written Warning – spelling out the consequences of your performance not improving.
If you are unhappy with the conduct of the Formal Meeting, or believe that the performance improvement plan is unreasonable, you have a right to Appeal to an independent manager.
3. Second formal meeting
A further Formal Meeting to review your progress will be held. This will typically be around mid-way through the period within which you have been told your performance must improve.
If you are able to show that your performance has met your employer’s expectations, the performance management process should come to an end.
However, if you are told it has not, your performance will be tracked further for the remainder of the performance review period.
You may be issued a Final Written Warning, stating that if you still haven’t made the necessary improvement by the next meeting, you could be dismissed on grounds of performance capability.
Being a Formal Meeting, you will have a right to be accompanied. You will also be able to appeal against the outcome.
4. Third and final formal meeting
In the letter inviting you to the next Formal Meeting on your performance, you may be told that one of the possible outcomes of the meeting will be the termination of your contract of employment on grounds of capability. This is if the hearing manager comes to the conclusion that your performance hasn’t sufficiently improved and that you have failed to achieve the requirements of your performance improvement plan.
Again, you will have a right to be accompanied. Even if you have taken the risk of not previously being represented, it would be very unwise not to be accompanied at this meeting. WRS can arrange for a representative of a union to support you.
If your employer intends to terminate your contract on grounds of capability, it is likely to do so following an adjournment at the end of the meeting. Your dismissal will be confirmed in writing and you should be advised of your right to appeal.
If terminating your contract of employment, you are likely to be paid in lieu of working your contractual notice entitlement. Your minimum statutory entitlement will be two weeks’ pay once you have completed two years’ service. This increases by a week for each additional year you have completed up to a maximum of 12 weeks paid notice.
If you are supported by WRS, your employer will soon realise that it cannot get away with cutting corners or dismissing you unless it can be absolutely sure it can prove it has acted correctly. This is why – if termination becomes a possibility – many employers will consider reaching a financial settlement with you, rather than take the risk of legal proceedings.
If your performance comes under particular criticism and scrutiny, it is possible that you might reach the point that you feel ‘enough is enough’. You might consider voluntarily leaving your job if your employer were to make you an attractive compensatory offer.
Meanwhile, your employer will know that, if you are being professionally represented, it will be a difficult and protracted process dismissing you on performance capability grounds. It could be exposed to significant risks and costs if you were to make a complaint to employment tribunal.
In these circumstances, the conditions might be right to negotiate a Settlement Agreement. The amount you might secure will be influenced both by the technical strength of case presented on your behalf and the effectiveness with which your case has been represented.
If you are dismissed on performance capability grounds, you may be able to claim for unfair dismissal at an employment tribunal.
To be able to defend itself against such a claim, your employer would need to show that it had:
- Genuine and reasonable grounds for believing that you were not capable of satisfactorily fulfilling your job responsibilities.
- Followed a clear and transparent process – whether through its disciplinary policy or a specific performance management policy – and that this was consistent with the requirements of the ACAS Code of Practice.
- Conducted a proper examination of your performance and taken into account any concerns you might have raised.
- Made it clear to you that you were underperforming, given you clear direction on how you needed to improve, and warnings on the consequences of failing to do so.
- Provided you with reasonable time to achieve the improvements it said were required
- And finally, given consideration to moving you into a suitable alternative role.
You can read more here on what is involved in taking a claim to employment tribunal.
WRS’s union specialists have considerable experience of successfully resolving individuals’ performance concerns.
When a case is brought to us, we carefully examine the employer’s performance management policy and establish whether you have been treated fairly.
This includes assessing whether you genuinely have received sufficient feedback, direction and support from your employer.
It often is the case for contested performance ratings that complainants have been badly down by their managers. This can often involve unrealistic targets, an absence of satisfactory performance feedback, or a failure to provide them with sufficient resources, direction or support.
Whatever the circumstances, WRS representation will provide you with the very best chance of success. We have considerable experience of challenging unfair performance ratings, securing higher bonuses and pay increases, and resisting dismissal on performance capability grounds.