Dealing With Poor Performance Case Study 1

Managing poor performance is rarely simple or swift, particularly for those employers with detailed capability procedures in place. Huw Cooke looks at five of the more challenging questions HR advisers may face when dealing with underperformance.

1. I have an employee with a negative, “can’t do” attitude. I need to tackle this but I am confused as to whether this is a performance or a misconduct issue?

Managing difficult employees is a challenge most in HR will face from time to time, and a negative attitude does nothing for team morale. Some employees are inherently incapable of behaving in a constructive and professional manner – put simply, a negative attitude is a part of their character. For others, a continually negative attitude is due to a lack of desire, for whatever reason, to improve their behaviour.

If you can determine the root cause of the poor attitude, this may help – an inability to improve attitude will normally be a capability issue, a deliberate refusal to improve attitude and behaviour would be misconduct. However, this will not always be easy to ascertain.

In practical terms, the choice of procedure typically only becomes an issue if the employee is dismissed and claims unfair dismissal. If you can show you carefully considered which procedure was the most appropriate (capability or disciplinary) and followed that procedure in accordance with best practice, you should be in a good position to argue that the process applied was fair.

Remember, though, atypical behaviours and reactions can arise as a result of certain medical conditions, so be aware of this when assessing your approach.

2. I’ve got an employee whose performance improves for a month or two, but inevitably drops back. What do I do?

This can be incredibly frustrating for a business – you think you have nailed the problem only to find the employee’s performance dips once more, usually just after the written warning has expired.

One practical way to address this is to consider whether you can lengthen the time frame for improvement and/or extend the length of time that the warning will remain live.

If you do this, set out why you feel the extension is justified – namely that you have concerns about the employee’s ability to maintain acceptable performance levels for a sustained period (particularly if you are deviating from a written policy). This will ensure the employee understands why they are being treated in this way and offers protection from allegations of discriminatory treatment.

3. How do I assess what is a reasonable period of time for an employee to improve their performance?

This is one of the most difficult questions that HR can be asked by a line manager as the answer is: “it depends”. While employment tribunals are nowadays more realistic than the 1976 case of Sibun v Modern Telephones Limited, where it was decided that a salesman with 20 years’ service was entitled to three years to improve his performance, there is no simple answer to this question and each case will turn on its own particular circumstances.

However, in assessing whether a period is reasonable, the following factors will be relevant:

  • The nature of the job – an employee will be able to improve some things more quickly than others. For example, an employee who has to cold call a certain number of leads per day will require a considerably shorter period of time to improve their performance than a salesperson whose performance is measured on sign-off of orders (particularly where there is significant investment of time and effort to generate a sales pipeline).
  • Your own procedures and practices – many employers will have written procedures which set out the time frames for improvement or will have a standard approach (either across the business or in parts of the business) that will need to be taken into account.
  • The employee’s past performance – generally speaking, if an employee’s performance has been good for a considerable period of time, they should be given longer to improve their performance.
  • The size and administrative resources of the employer – larger employers are expected to give employees longer to improve as they will be considered to have the resources to tolerate the underperformance and to support the employee in a way that small employers do not.
  • The employee’s personal circumstances – if the poor performance is as a result of personal circumstances, for example, a divorce or bereavement, the employer will need to take this into account when assessing the period of improvement.
  • Agreement with a trade union – in some cases, an employer will have agreed time frames with its recognised trade union.

In any event, the time frame needs to be reasonable so it is helpful to agree the improvement period with the employee. If an employee agrees the time frame, it will make it more difficult for them to argue that the period was not reasonable.

4. A line manager in my business unit is always complaining that his sales team are underperforming, but he can never give me any concrete evidence. I can’t start disciplinary proceedings without this information. What should I be asking him for?

One of the most important steps in any poor performance process is to identify the performance gap – ie, the gap between what an employee should be doing and what the employee is actually doing. This is important not only in supporting the employee to improve their performance, but is also a prerequisite of a fair dismissal (if performance does not improve).

You need to speak to the line manager and get him to articulate the underperformance in specific terms. This is easier said than done, but vague expressions of dissatisfaction will not be sufficient.

The line manager should be able to show the baseline performance required of his sales team. This may be measured on objective criteria (for example, specific monthly sales targets) and/or subjective criteria (for example, demonstrate good teamworking skills). It is also important that employees know the expected baseline and that this knowledge can be evidenced.

Once the line manager has demonstrated the baseline (and, importantly, that the sales team are aware of it), he needs to provide you with clear evidence of where proper standards have not been reached. This might include examples of specific work, 360-degree reviews, emails from other members of the team or other managers, the outcome of any informal performance process, and employee appraisals.

It is worth encouraging your line managers to carry out this exercise on a regular basis (for example, pre-appraisal) to make sure the employee is clear as to what is expected of them.

An additional word of warning – train and encourage line managers to deal with appraisals/performance reviews honestly. A string of appraisals which give no indication that anything is awry makes a fair dismissal for capability considerably more difficult to achieve.

5. Performance processes can take so long to carry out – are settlement agreements the panacea?

The length of time involved, the disruption caused to the business and the possibility of litigation all mean that many employers will consider making a “without prejudice” offer for an agreed exit from the business to be the lesser of two evils.

“Without prejudice” negotiations need to be handled carefully to ensure that, if a deal cannot be achieved, the discussions cannot be raised in subsequent litigation. An employer will often start the process by establishing their “open” position by kicking off the capability procedure. Once the procedure has been initiated, you may want to approach the employee on a “without prejudice” basis indicating that you might be prepared to consider an agreed exit from the business.

At the same time, in order to protect yourself from allegations of unfair dismissal if you cannot reach a deal, you should make it clear to the employee that the business is prepared to go through with the capability process, if necessary. The employee should also understand that no decisions on the outcome of the process have been taken.

The use of settlement agreements should be carefully planned to ensure that you have considered your open position, the legal position, possible claims and potential costs (including legal costs).

Settlement agreements certainly have their uses, particularly for senior exits, but employers should be wary of using settlement agreements as their “default” position to avoid workplace perceptions that poor performers will always receive generous pay-offs.

About Huw Cooke

Huw Cooke is a senior associate at Burges Salmon LLP.

View all posts by Huw Cooke →

For every hundred men hacking away at the branches of a diseased tree, only one will stoop to inspect the roots. – Chinese proverb.

Are individual members of your team performing less well than you'd hoped? If so, this proverb can take on great significance. To figure out what's causing the performance issue, you have to get to the root of the problem.

But because employee performance affects organizational performance, we tend to want to look for a quick fix. Would a training course help Ted? Or should you move him into a different role?

These types of solutions focus largely on the ability of the person performing the job. Performance, though, is a function of both ability and motivation.

Performance = Ability x Motivation

From "Developing Management Skills" (8th Edition) p.27, by David A. Whetten and Kim S. Cameron. © 2011. Reprinted by permission of Pearson Education, Inc. Upper Saddle River, NJ.


  • Ability is the person's aptitude, as well as the training and resources supplied by the organization.
  • Motivation is the product of desire and commitment.

Someone with 100 percent motivation and 75 performance ability can often achieve above-average performance. But a worker with only 25 percent ability won't be able to achieve the type of performance you expect, regardless of his or her level of motivation.

In this article and in the video, below, we'll explore how you can enhance ability and improve motivation in your team to get the best out of them.

Watch this video to discover how to improve ability and motivation in your team.


This is why recruitment and job matching are such critical parts of performance management. Be sure to assess ability properly during the selection process. Minor deficiencies can certainly be improved through training – however, most organizations don't have the time or resources needed to remedy significant gaps.

Diagnosing Poor Performance

So, before you can fix poor performance, you have to understand its cause. Does it come from lack of ability or low motivation?

Incorrect diagnoses can lead to lots of problems later on. If you believe an employee is not making enough of an effort, you'll likely put increased pressure on him or her to perform. But if the real issue is ability, then increased pressure may only make the problem worse.

Low ability may be associated with the following:

  • Over-difficult tasks.
  • Low individual aptitude, skill, and knowledge.
  • Evidence of strong effort, despite poor performance.
  • Lack of improvement over time.

People with low ability may have been poorly matched with jobs in the first place. They may have been promoted to a position that's too demanding for them. Or maybe they no longer have the support that previously helped them to perform well.

Enhancing Ability

There are five main ways to overcome performance problems associated with a lack of ability. Consider using them in this sequence, which starts with the least intrusive:

  1. Resupply.
  2. Retrain.
  3. Refit.
  4. Reassign.
  5. Release.

From "Developing Management Skills" (8th Edition) p.27, by David A. Whetten and Kim S. Cameron. © 2011. Reprinted by permission of Pearson Education, Inc. Upper Saddle River, NJ.

Be sure to address each of these interventions in one-on-one performance interviews with employees.

1. Resupply

Focus on the resources provided to do the job. Do employees have what they need to perform well and meet expectations?

  • Ask them about additional resources they think they need.
  • Listen for points of frustration.
  • Note where employees report that support is inadequate.
  • Verify the claims with your own investigation. People will often blame external sources for their poor performance before admitting their own fault.

This is a very effective first step in addressing performance. It signals to members of your team that you're interested in their perspective and are willing to make the required changes.

2. Retrain

Provide additional training to team members. Explore with them whether they have the actual skills required to do what's expected. Given the pace of change of technology, it's easy for people's skills to become outdated.

This option recognizes the need to retain employees and keep their skills current. There are various types of retraining you can provide:

  • Training seminars with in-house or external providers.
  • Computer-based training (CBT).
  • Simulation exercises.
  • Subsidized college or university courses.

Resupplying and retraining will often cure poor performance. People and organizations may get into ruts, and fail to recognize these issues until poor performance finally highlights them.

3. Refit

When these first two measures aren't sufficient, consider refitting the job to the person. Are there parts of the job that can be reassigned?

Analyze the individual components of the work, and try out different combinations of tasks and abilities. This may involve rearranging the jobs of other people as well. Your goal is to retain the employee, meet operational needs, and provide meaningful and rewarding work to everyone involved. (For more detail on this, see our article on Job Enrichment.)

4. Reassign

When revising or refitting the job doesn't turn the situation around, look at reassigning the poor performer. Typical job reassignments may decrease the demands of the role by reducing the need for the following:

  • Responsibility.
  • Technical knowledge.
  • Interpersonal skills.

If you use this option, make sure that the reassigned job is still challenging and stimulating. To ensure that this strategy is successful, never use demotion as a punishment tactic within your organization. Remember, the employee's performance is not intentionally poor – he or she simply lacked the skills for the position.

5. Release

As a final option for lack of ability, you may need to let the employee go. Sometimes there are no opportunities for reassignment, and refitting isn't appropriate for the organization. In these cases, the best solution for everyone involved is for the employee to find other work. You may need to consider contractual terms and restrictions; however, in the long run, this may be the best decision for your whole team.

Remember, there are potential negative consequences of retaining a poor performer after you've exhausted all the options available:

  • You'll annoy other members of your team, who may have to work harder to "carry" the poor performer.
  • You may promote a belief in others that you're prepared to accept mediocrity – or, worse, underperformance.
  • You may waste precious time and resources that could be better used elsewhere.
  • You may signal that some employees deserve preferential treatment.
  • You may undermine the whole idea of finding the best person for the job.

Improving Motivation

Sometimes poor performance has its roots in low motivation. When this is the case, you need to work closely with the employee to create a motivating environment in which to work. There are three key interventions that may improve people's motivation:

  1. Setting of performance goals.
  2. Provision of performance assistance.
  3. Provision of performance feedback.

1. Performance Goals

Goal setting is a well-recognized aspect of performance improvement. Employees must understand what's expected of them and agree on what they need to do to improve. For a detailed explanation of the goal setting process, see our articles on Goal Setting, Golden Rules of Goal Setting and Locke's Goal Setting Theory.

2. Performance Assistance

Once you've set appropriate goals, help your team member succeed by doing the following:

  • Regularly assessing the employee's ability, and take action if it's deficient.
  • Providing the necessary training.
  • Securing the resources needed.
  • Encouraging cooperation and assistance from coworkers.


Consider using the GROW Model as a way of coaching employees to improve their performance.

3. Performance Feedback

People need feedback on their efforts. They have to know where they stand in terms of current performance and long-term expectations. When providing feedback, keep in mind the importance of the following:

  • Timeliness – Provide feedback as soon as possible. This links the behavior with the evaluation.
  • Openness and Honesty – Make sure that the feedback is accurate. Avoid mixed messages or talking about the person rather than the performance. That said, provide both positive and negative feedback so that employees can begin to truly understand their strengths and weaknesses.
  • Personalized Rewards – A large part of feedback involves rewards and recognition. Make sure that your company has a system that acknowledges the successes of employees.

Supporting this, ensure that you meet regularly with the employee, so that you can review progress and provide regular feedback.

Creating a Performance Improvement Plan

So how do you do this in practice? This is where you need to develop a performance improvement plan. Armed with the strategies we've looked at, you first need to evaluate the performance issue that you're facing:

  • Have you discussed with the person what he or she feels the problem is?
  • Have you evaluated your organization's motivation system? Are you doing everything you can to recognize and reward people's contributions?
  • Are you rewarding the things that you actually want done?
  • Do you have regular goal setting and development meetings with members of your team?
  • Do you help your people keep their skills current?

From there, it's important that you and the employee discuss and agree upon a plan for improving performance. Write down what you've agreed, along with dates by which goals should be achieved. Then monitor progress with the team member, and use the techniques we've discussed above for increasing motivation and dealing with ability-related issues.

Recognize that the actions needed to close ability gaps need high motivation on the employee's part to be successful. The two causes of poor performance – lack of ability and low motivation – are inextricably intertwined, and goal setting, feedback, and a supportive work environment are necessary conditions for improving both.

Key Points

You need to understand the root of a performance problem before you can fully address it. Ability and motivation go together to impact performance, and the most successful performance improvement efforts combine strategies for improving each. This creates a positive environment where people feel supported to reach their performance potential; and feel valued, knowing that the organization wants to find a good fit for their abilities.

At times, your interventions may not be enough to salvage the situation. As long as you've given performance enhancement your best effort, and you've reasonably exhausted all your options, then you can feel confident that you're making the right decision if you do need to let someone go.

Before going down that route, however, try the strategies discussed here and create a great work environment for your employees – one where their abilities are used to their full potential, and where good motivational techniques are used on a regular basis.

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