Can Employment Tribunals Be Avoided?

Any employer can manage good people; you just point them in the right direction and leave them to get on with the job. Any employer can manage a gross misconduct issue, as there are usually clear facts to work on, and a clear process to follow. Managing employee poor performance however is not so easy or straight forward. Performance issues can be complicated as there are often unclear facts to work on, and emotions can run high on both the employers and employees part. Add the worry about employment legislation, and you have a real challenge for employers today. Challenging as it is, employers have to tackle poor performance. If they do not the damage to their business, their team morale, and their stress levels can be considerable.

So what do employers have to do when tackling poor performance and avoid tribunals?

The first thing employers need to be made aware of is that since April 2009 they do not have to get every detail right in order to avoid an unfair dismissal claim. The rule today is ‘fair and reasonable’ which means that if an employer tackles a poor performance issue fairly and reasonably, this will reduce the risk of a tribunal claim. The question on many employers’ mind though is; what is meant by fair and reasonable?

Doing the following will go a long way in achieving a fair and reasonable approach to tackling poor performance.

  • Get your paper work in order, contracts, job specs, personnel records are all critical now.
  • Get your facts right – there must be evidence of poor performance.
  • Discuss performance issues early on as the longer you leave them the more difficult they will become to resolve.
  • Issue improvement plans before moving into a disciplinary discussion.
  • Give employees both time and help to improve their performance.
  • Treat every employee in the same way.
  • If you go down the disciplinary route stick to the ACAS code of practice
  • Deal with grievances and appeals straight away
  • Call in professional HR support when required.

Handling a poor performance issue fairly and reasonably does not mean employers will always avoid a tribunal claim, as some disgruntled employees will launch a claim, even if they are unwarranted. Being equipped to handle a situation fairly and reasonably will reduce the risk of a claim reaching the tribunal stage.

Should you require further information, or would like to enrol on a forthcoming workshop please contact

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