Problems arising from an employee’s capability are frequently issues which can hinder the smooth running of any operation. Dealing with such issues in a timely and legally compliant manner can stave off many long term problems. However it can be a tricky area to get right legally with many potential hurdles to overcome. The following are some questions and answers on the topic of capability Croner has received to its advice lines from practice managers. 

Poor performance during a probationary period 

In our contractual terms and conditions we state that there is an initial three-month probationary period during which time we can dismiss employees with notice without going through our disciplinary procedure. Our normal probation review procedure is to hold a review meeting towards the end of the first three months, and either confirm successful completion of probation or extend the probation period where necessary.

We have an employee who has been employed with us for six months. We did not hold a probationary review meeting at three months or confirm successful completion of probation or otherwise. We now want to dismiss the employee. Can we rely on the fact that we did not confirm the successful completion of the probationary period and therefore dismiss him without following any procedure, as we believe the employee is still in his probation period?

You cannot rely on the failure to follow the correct procedure as an assumption that the probationary period is still in place. If you do so, you risk a potential breach of contract claim (as the employee has no reason to believe that his probationary period was unsuccessful and therefore would expect misconduct or performance matters to be dealt with under the full company procedure). We therefore advise you to follow your normal disciplinary or capability process.

Disciplining an employee for poor performance 

We have been performance managing a member of staff who is not working to the level we would expect. Her manager has now decided that there has been insufficient improvement and would like to start disciplinary procedures. As this manager has been involved throughout, can she still conduct the disciplinary hearing?

When taking an employee through performance management, and the performance concerns are due to the employees’ inability to perform to the standard required, then there is no reason why the same manager can’t take the employee through the full process. Separate investigation and disciplinary officers are only required in matters of misconduct and not performance.

Disciplinary action – Right of accompaniment 

I have written to one of my employees informing her that she is required to attend a disciplinary hearing for poor performance. She has asked if her partner can accompany her to the hearing, although he doesn’t work for us. Do we have to allow this?

Unless you have contractual provisions which state otherwise, there is a statutory right to be accompanied by a fellow worker or trade union official only at disciplinary and grievance hearings. A trade union official means a full-time official of a union or a lay official who is certified by the union as having had training in, or experience of, acting as a companion at disciplinary hearings. The trade union official does not have to belong to a union recognised by the employer. This right therefore does not generally extend to a partner, unless that partner falls within the above definition.

Disciplining a pregnant employee for poor performance 

One of my employees is pregnant and, ever since she announced it, her attitude has changed and her quality of work has deteriorated; she is making a lot of mistakes and it is starting to frustrate the team and have an impact on patient care. Can I discipline her?

It is possible for employers to discipline pregnant employees; but they should proceed with caution and only consider this when it is an appropriate course of action taking into account all of the circumstances. Any employer who is considering disciplinary action against a person who has a chance of claiming the action could be associated to a protected characteristic (i.e. pregnancy) should carry out a full and thorough investigation, leaving no stone unturned, prior to taking any formal action. You should be confident that there is no underlying pregnancy-related reason causing or contributing to the alleged misconduct or poor performance; if there is, then taking disciplinary action could result in a claim for pregnancy and maternity discrimination under the Equality Act 2010. (For example, disciplinary action against a pregnant employee for persistent lateness could amount to pregnancy and maternity discrimination if her lateness is caused by morning sickness.)

If you dismiss a pregnant worker or treat her less favourably than you would otherwise treat any other employee, there is a risk of a claim for discrimination so before progressing further with any formal action, you should ask yourself how this would be addressed with any other employee. If you are comfortable that you would treat any other employee consistently (ideally you would be able demonstrate that this has been the case for others in the past) and show that you have conducted a full and thorough investigation, then you can consider taking formal action in accordance with your disciplinary procedure.

Disciplinary action – What to include in a written warning letter 

One of my employee’s has recently attended a disciplinary hearing in relation to his persistent poor performance. Following the hearing, we advised him that our decision was to issue him with a written warning. What do I need to include in the letter to confirm the decision?

There are a number of important points that need to be included:

• The level of warning that you are issuing to the employee.
• The length of time the warning will remain on the employee’s file.
• The nature of the poor performance.
• The improvement that is required from the employee, over what period and how they will be assessed.
• The consequences should there be a failure to improve performance, e.g. final written warning if a written warning has been issued or dismissal if a final written warning has been issued.
• The right to appeal, stating to whom the employee should address their appeal and the deadline for submitting the same. 

It is also advisable to detail your decision-making process, including evaluation of the evidence in support of the allegation, all relevant discussions from the disciplinary hearing and any mitigation put forward by the employee in order to identify the factors taken into consideration in coming to a decision.

Disciplinary action – Final warnings and expiry dates.

 Are we obliged to keep or remove documents related to an investigation, including the issue of a final written warning, on an employee’s personal file especially after the expiry date or warning is not applicable anymore? 

There is no legal obligation to remove documents relating to investigations or sanctions of any kind. However, under the Data Protection Act, employees are allowed to access personal data (unless a crime is being investigated) and employers should:

• not use obtained information about an employee for any purpose other than the one for which it was obtained
• adopt clear procedures about disposing of ’spent’ warnings or reasons for keeping them on file after they are spent
• keep accurate records of reasons for leaving, especially if dismissed
• maintain personal data which is accurate, relevant and not excessive. 

It should be noted, however, that expired warnings should not normally be taken into account in deciding on a sanction for a subsequent disciplinary matter, although knowledge of expired warnings may limit the mitigation available to the employee. Relevant case law suggests that employees are entitled to have a reasonable expectation that the employer means what it says if it states on the warning that it will be disregarded after a specific period of time.