It is essential to deal with underperforming employees with the greatest of care to deflect the potential tribunal threat which is so frequently bandied about by disaffected staff. Always back up criticism with firm examples and deliver any bad news in a calm and measured manner. It is not just what is said but also how it is said, line managers must be must be watchful against providing an opportunity for an underperforming employee to allege bullying.
An insensitive or hectoring manner, whilst in itself would not necessarily justify bringing a case, risks being viewed as part of an orchestrated attempt to put pressure on an individual, as in the case of MacFarlane -v- Bates Wells and Braithwaite. Due to a change in her personal circumstances Ms. MacFarlane's performance began to suffer. She was then subject to a number of disparaging incidents and resigned following which she brought a case to the employment tribunal. The tribunal took the view that the incidents, while they were not necessarily breaches in themselves saying "...cumulatively they amounted to a breach of the implied term of mutual trust and confidence, building up to the last straw...". The employment tribunal concluded that Ms. MacFarlane had been constructively unfairly dismissed. Bates Wells and Braithwaite appealed and lost as the EAT held "...that the employment tribunal had identified sufficient facts, without necessarily taking themselves through the individual component parts form them to draw the conclusion that the conduct of the employer, viewed objectively, entitled them to conclude that Ms. MacFarlane was being put under undue pressure to resign..."
Never lose sight of the fact that employees have the right of access to appraisal and performance review notes. Whilst comments such as "...this young lady has delusions of adequacy..." and "...the employee is depriving a village somewhere of an idiot..." may make amusing and sometimes accurate reading such comments will only pose a massive threat to the business if they ever come to light.
Even with a failing employee it may be possible to praise them into performing; few people do not respond well to a vote of confidence and most people will try hard to meet expectations. If the role is truly beyond them and they have always felt they have been treated well they may decide a career change is called for and move on with no hard feelings.
Liberal encouragement and praise are likely to produce better long term results and line managers' optimistic expectations can be surprisingly self fulfilling.
© Tanda Migliorini & Associates LLP 2011