How to deal with underperforming employees

Alistair Dunsmuir
By Alistair Dunsmuir June 15, 2018 13:58

This guidance from the National Golf Clubs’ Advisory Association (NGCAA) looks at the legal issues golf clubs need to consider regarding underperforming employees.

For many managers tasked with running a golf club, there appear to be few occasions when the law and common sense collide. However, after reading this article, you may join me in thinking that the recommended legal approach for dealing with underperforming employees is one such rare occasion.

Essentially, the employee should be given a chance to understand the perceived shortcomings and have a reasonable time within which to improve. It’s a sensible approach for both the employer and employee since the employee gets a fair warning to improve before dismissal is considered whilst, if they do improve, the employer gets their employee back on track to performing how they should

Internal management steps

The first step for any golf club manager should be to carry out an ‘in-office’ assessment before embarking upon a process of formal performance management with an employee. This should include:

  1. Check if there is any specific performance or capability procedure at the club. If there is any conflict with the suggested procedure below, please take advice.
  2. Note that a genuine poor performance issue is normally due to the employee’s innate inability to perform, meaning that it should not be dealt with under the disciplinary process. However, if it appears that the employee is taking calculated steps which lead to poor performance, then the club may wish to divert to the disciplinary procedure.
  3. Both at this stage and throughout the performance procedure, beware of a possible underlying cause behind the poor performance, such as a disability. For example, if an employee is unable to perform to the required standard because they are suffering with a stress-related condition then you should halt the process while you seek the employee’s consent to obtain a medical report. The content of the medical report may well bring about a very different solution to their ‘poor performance’ in that some adjustments may be suggested in the medical report which bring about a swift resolution to the perceived problem. It is always recommended that the club is fully appraised of any medical situation before it proceeds with a plan to solve the performance issues.
  4. Check for any evidence of health and safety concerns, any protected disclosures, evidence of discrimination or any trade union activities. A golf club should take advice before proceeding if any of these matters are an issue.
  5. Pull together any supporting evidence which may be useful to discuss with the employee when the meeting takes place.
  6. Consider and list the perceived shortcomings, along with a linked list of the improvements you would like to see from the employee. It may be wise to check these off against any job description or the contract of employment.

First letter

The invitation to attend the first meeting should set out the perceived shortcomings that you have identified, as well as enclosing any supporting evidence. You may wish to include within this letter the opportunity for them to be accompanied by a trade union representative or workplace colleague.

First meeting

The performance review meeting should recite the perceived shortcomings and ask the employee to give their view on each. During the meeting you should seek to identify targets for improvement, along with timescales.

The club should also offer any training or assistance which might help the employee to hit the targets. It is generally reasonable to set an overall period for improvement at six months, with there being perhaps interim reviews along the way to chart progress. The exact period for improvement may vary for each employee and their role: for example, a greenkeeper may not be able to achieve certain improvements in course condition during the winter months so a longer period may be more appropriate.

As suggested above, beware of possible disability and consider adjourning to obtain medical opinion, if appropriate.

Outcome letter

After the meeting, you should write to the employee to confirm the discussion, setting out the required improvements and the target dates.

Your letter should be sufficiently clear to set out the required standards, as well as warning the employee that if they have not improved to the required standard at the end of the review period, then they may face dismissal.

The employee should be given the opportunity to appeal against the outcome of this meeting.

Ongoing review

After having set a review period of, say, six months for the overall improvements, the law would require you to have interim reviews. As a minimum, you should have at least one review meeting at, say, the three-month point where you would chart their progress. Again, the letter should be similar to the one referred to above in inviting them to interim meetings, suggesting that they have the right to be accompanied and giving them some detail of the matters to be discussed. This should cross-reference (and I would suggest enclosing) the outcome letter from the first meeting.

Letter

At the end of the six-month review period you would send a letter to invite the employee to a meeting.

The letter should set out the detail of the perceived shortcomings, making reference to the previous meetings and the performance improvement plan. You should enclose any supporting evidence, previous correspondence and notes of previous meetings. Your letter should warn the employee that the outcome of the meeting may lead to dismissal and should give them the right to be accompanied by trade union representative or workplace colleague.

Final meeting

After re-iterating the perceived shortcomings, the employee should have the opportunity to state their case and put forward any defence. You should consider carefully what the employee has had to say and you may wish to adjourn the meeting for a period of time before making any decision. You should consider all aspects before making a decision, including the length of service, previous employment record, the matters raised within the performance improvement plan and any other issues referred to previously. Again, you should be alive to potential matters of discrimination being raised by the employee at this stage and if they are, you should adjourn the meeting while you take advice.

Regardless of any discrimination or other complicating factors being raised, it is always wise to adjourn whilst you deliberate. This may be a period of 30 minutes, one hour or longer. It depends upon the circumstances of the case but if you may wish to take even more time to consider it, such as 48 hours, you should advise the employee at the close of the meeting that you will confirm your decision in writing within the next few days.

The employee may have improved to the required standard, in which case this should be confirmed and both parties can move on as originally intended under their contract

The employee may have met some, but not all, of the targets; in that case and as an alternative to dismissal the club and the employee may agree (note that it would have to be specifically agreed) to change their role, responsibilities and pay rate as an alternative to dismissal. This outcome should be recorded in writing and a fresh contract of employment or job description issued, if appropriate.

If the employee has not improved sufficiently, the club may dismiss although each case will depend upon its facts and advice should be taken before you make that decision.

Final outcome letter

If the employee has improved sufficiently, this should be confirmed in your final letter; if they have improved part of the way and you have agreed changes to their role, as outlined above, this should be confirmed, along with a revised contract, if appropriate.

If you decide to dismiss, then that should be confirmed in writing, setting out the reason for dismissal, which would be the statutory permitted reason of capability. This is where the law does provide commonsense in that it is a statutory and potentially fair reason to dismiss.

Your letter should also give them the right to appeal against the dismissal.

Dismissal in these circumstances would be on notice because the employee has not committed an act of gross misconduct. They would therefore either work their notice in full or you could pay them in lieu of all or part of their notice.

Conclusion

This is a common-sense approach to resolving poorly performing employment issues; it gives a chance for the employee to improve and to get on track, as well as ensuring that the golf club follows a procedure that reduces the risk of a successful claim in the event of a dismissal.

The process of dealing with poorly performing employees can be complex and we urge golf club managers to take advice from the NGCAA throughout a performance improvement plan.

 

 

Chief Executive Alistair Smith leads the National Golf Clubs’ Advisory Association (NGCAA) in providing guidance and support on all legal matters impacting golf clubs. 

The National Golf Clubs’ Advisory Association (NGCAA)

The Threshing Barn, Homme Castle Barns,

Shelsley Walsh, Worcestershire, WR6 6RR

Tel: 01886 812943

email info@ngcaa.co.uk

www.ngcaa.co.uk

 

Alistair Dunsmuir
By Alistair Dunsmuir June 15, 2018 13:58
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