Every organization eventually faces this situation: an employee is not performing as expected. Agreements are not being met, results are falling short, the quality of the work is subpar, or colleagues are expressing frustration with the employee. A dysfunctional employee not only costs the organization a lot of money and time, but also a great deal of energy.
Employers often underestimate how easily a performance issue can get out of hand. Waiting too long leads to frustration and rising costs. Acting too quickly, on the other hand, leads to legal problems. And then there are many other legal pitfalls that the organization must avoid in order to ultimately proceed with termination.
As experienced employment law attorneys, we regularly deal with performance issues and see where the biggest pitfalls lie for employers. In this article, we provide more information about poor performance and offer dos and don’ts for dealing with underperforming employees to avoid high compensation payments or a failed termination.
When is performance considered unsatisfactory?
Simply put, poor performance means that an employee is not doing their job well enough. The organization has a great deal of discretion in assessing the level of performance expected of an employee and determining when those expectations are not being met. This includes the goals that must be achieved, the quality of the work, and the skills an employee must possess.
In cases of poor performance, it is important that this not be caused by illness or inadequate working conditions. For example, if an entire department is underperforming, this is more likely due to the circumstances than to the employee himself or herself.
Another area where it is difficult to distinguish between poor performance and a workplace conflict is labor disputes. An employee’s behavior can play a major role in his or her performance, but it can also be a sign of a conflict situation. It is often difficult to distinguish between the two. However, these situations require different approaches. It is therefore advisable to seek legal advice on this matter.
Consequences of Poor Performance
Although termination may result from poor performance, this is not the only possible outcome that can or even must be considered. Furthermore, there are strict requirements for termination based on poor performance, so it is important to take the right steps at the right time.
If it is determined that an employee is underperforming, the first step is to issue a warning. The employee must then be given an opportunity to improve his or her performance. If this is unsuccessful, it must be determined whether the employee can possibly be reposted within the organization. Sometimes a demotion is an option in such cases, but not always. Only then might the situation qualify for termination. This can be done through a court-ordered termination, but also through a settlement agreement if the employee is open to it. In both cases, consideration must be given to the notice period and the transition allowance of the employee. If you, as an employer, have not followed the proper steps, you risk having the termination ruled invalid in court or facing a hefty fair compensation.
The Most Important Dos and Don’ts When Dealing with Poor Performance
Dos
- Be clear and on time
Warn the employee in writing of the poor performance and state the consequences of a lack of improvement. - Work with a realistic improvement plan .
Give the employee clear goals, sufficient time, and the right support to improve. The amount of time and support needed varies by situation and employee. - Document the agreements.
Ensure that the improvement plan, discussions, agreements, and evaluations are documented. This also applies to the final assessment of the improvement plan. - Look at other possibilities within your organization.
Sometimes an employee is better suited to a different role. Seriously investigate reassignment before considering dismissal. - Check whether there are any special circumstances
For example, illness or pregnancy. These situations require extra care, as a prohibition on termination may apply.
Don’ts
- Don’t wait too long
Waiting rarely leads to improvement and makes it harder to take decisive action later on. - Don’t be too informal
Employers often tend to offer criticism in a gentle and informal manner. However, it’s more important to be clear and to document feedback properly. - Don’t treat the improvement plan as a mereformality
An employee must be given a genuine opportunity to do better. - Do not use subjective or vague areas for improvement
Goals that the employee must meet must be clearly defined, realistic, and objectively measurable. Vague or subjective areas for improvement often lead to a dismissal being overturned. - Don’t ignore signs of burnout
Burnout can result from illness or working conditions, and does not necessarily indicate poor performance.
Why Early Advice Makes a Difference
Dealing with poor performance isn’t something you can just “take care of on the fly.” It’s precisely in the early stages that mistakes are made that are difficult to correct later or will end up taking a lot of time. By consulting with a specialist early on, you can avoid taking the wrong steps and taking unnecessary risks.
Wessel Van der Lans assists employers with performance review processes, improvement plans, and termination. His approach is practical, clear, and tailored to your organization. Would you like to know where you stand, or what approach makes the most sense for your situation? Please feel free to contact us.
If you want to be well-prepared in the event of poor performance, sign up for our training session,“What to Do When an Employee Is Underperforming?”
