12 September 1997



Dealing with unsatisfactory work performance is not always straightforward and there is often no quick solution. Mandy Lyne, head of the employment unit at Cambridge law firm Taylor Vinters, advises on the careful handling required in cases of under-achievement

1 – The loner who doesnt pull his weight

FARM labourer Michael B has always been a little difficult, but since the farms acreage was increased his output has dropped significantly.

A classic loner, he will do anything to avoid working in a team, does not quite pull his weight and rarely does overtime.

The situation has now come to a head following complaints from other employees on the farm. Clearly something has to be done, but what?

Michael has worked on the farm for more than two years and there is no mention of a team working requirement in his contract of employment and overtime is optional, so there is no simple solution.

There is of course the laissez-faire option – to find him work away from the rest of the work force. However, this is unlikely to ease the bad feeling among the other staff members.

It is not easily possible to change his contract to make overtime compulsory unless he is agreeable to this. He could be sounded out on this.

Otherwise the only real alternative is to start down the path towards disciplinary procedures which, in most cases, should be structured as follows:

Step 1: Michael should be sent a letter which explains that team working is required and, if possible, set out exactly what is expected of him and the ways in which he is not meeting the required standard.

He should be invited to discuss any particular problem he has with this way of working. If, for example, his problems are due to the way he is treated by the other men, this will need to be investigated and, if true, dealt with.

Step 2: If there is insufficient change in response to the letter after a reasonable time (perhaps a month), Michael should be sent a further letter which warns him that unless he changes his way of working, disciplinary action may need to be started.

Step 3: If there is still no change in his behaviour after a few weeks, he should be given a verbal warning. This should make it clear that further disciplinary action will follow if he does not change his ways within the next week or two. The warning should not be given until he has had the chance to have his say.

Step 4: If there is no, or insufficient, improvement a written warning could follow – but only after an invitation to meet with Michael and, if he wishes, a fellow worker to discuss performance levels. If you wish you can invite him to bring another person of his choosing if he does not want a fellow worker to be present.

Such an invitation must make it clear that you are thinking of issuing a warning. When such a meeting does take place, Michael must be allowed every opportunity to give his side of the story which has to be taken into account before any warning is given.

He should be told that his performance will be kept under review and that he is expected to show signs of improvement within the next week or two.

Step 5: If poor performance persists, he should be sent a final, written warning – again only after an invitation to a meeting. Again he should have the opportunity of being accompanied and should be told of the problems still arising and that a final written warning might result.

Step 6: Dismissal, on the basis of poor performance. This should only take place after a meeting – in the same way as the previous meetings. You are best advised to take legal advice before taking this step to check that what you are doing is appropriate in the circumstances of your particular case.

This whole process seems time-consuming, but will result either in a reformed worker or a good reason to dismiss with no liability for doing so unfairly. It will not necessarily result in his doing more overtime. That requirement cannot easily be imposed. If you do need to change his contract to make overtime obligatory, you should seek advice.

2 – Chronic illness takes its toll

Bill J has worked on Manor Farm for 18 months and for most of that time has been a reliable hard worker. Recently however, Bill has been unwell, and his performance at work has been poor.

After consulting his doctor, it transpires that he is suffering from a chronic illness of which fatigue is a key symptom. The condition is manageable by drugs, and Bill assures his farm manager that he will be fit for work. In reality, however, he is unlikely to return to his previous form and overtime will be a problem.

His illness is undoubtedly going to cause operational problems on the farm and represents a real dilemma. As he is likely to be regarded as suffering from a disability, the fact that he has less than two years service at Manor Farm cannot be taken into account – he automatically has rights to some protection.

The first thing that his manager should do is to ask for medical reports to try to get a clear idea if the likely impact of this illness. Bill will need to be asked for his written consent to a medical report and he should be told what his legal rights are in relation to seeing the report before it is sent to the manager, and asking for amendments.

Following the report, the manager needs to look carefully at Bills job and consider any adjustments that could be made to help him in his work.

In terms of performance the manager must be reasonable. He may have to accept the fact that he will need to take on extra labour from time to time to compensate, but this will depend on the size of the farm, its labour force and resources.

If Bills output in relation to his main work duties falls below that which could be reasonably expected, the employer may have a case for dismissing him – preferably following the procedures set out in the previous case. However, what exactly is reasonable in such circumstances is a grey area and it is important to take advice before making any final decision.

3 – Cheeky labourer – patchy worker

Twenty-year-old Jamie A has worked on Peter Ds 1500-acre farm for nine months. Lately he has taken to giving the boss the occasional bit of lip in front of the other staff. When he puts his mind to it, Jamie is a real grafter, but he is inconsistent and on occasions refuses point blank to do what he is asked.

In such a situation, Mr D may be able to dismiss Jamie, whose attitude may well rub off on other members of staff long term.

Because Jamie has only nine months service, Mr D needs only to give him written notice of one week (or more if he has a contract entitling him to a longer notice period) and the risks of any other claim by Jamie are relatively small.

However, Mr D would be best advised to check with his legal adviser what the risks are before he actually dismisses. The law is changing in this area and the position at the time of proposed dismissal should be ascertained.

If Jamie had more than two years service then dismissal would not be sensible and the disciplinary procedures set out in the first case (or some of them) should be followed before any consideration is given to dismissal.

Should Jamie have been complaining that he has not been given a written employment contract or that he has not been paid the right amount, Mr D should not dismiss him without first taking legal advice.

Failure to get good advice could be an expensive mistake – industrial tribunals may award up to £11,500 or £20,000 in cases of unfair dismissal, and costs could run into the thousands.

These case histories are all based on genuine cases, but names have been changed.

Failure to get good professional advice before dismissing a worker can prove expensive. Industrial tribunals can award up to £20,000 and costs if they consider that an employee has been unfairly dismissed.

Mandy Lyne, head of the employment unit at Cambridge law firm Taylor Vinters, says the disciplinary procedure path can seem time-consuming but should result in either a reformed worker or a good reason to dismiss with no liability for doing so unfairly.

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