Managing your employee’s performance – are press ups the answer?

The Government has identified a whole package of potential employment law reforms in an attempt to address this including the recent Call for Evidence on Workplace Dismissals seeking views on no-fault compensated dismissals for employers with less than 10 employees.
Employers often struggle to deal effectively with poor performing employees or simply avoid dealing with performance issues due to work pressures and lack of time.  Getting it wrong could result in a costly and time consuming Employment Tribunal claim for unfair dismissal.  It appears from recent press coverage that Abercrombie & Fitch, a US clothing label, has taken a novel approach to performance management by requiring employees to carry out push-ups or squats every time they make a mistake.
Whilst this approach may seem a novel and attractive alternative to the often lengthy performance procedures expected by Employment Tribunals in the UK, employers should consider the potential repercussions before rushing to adopt such a policy.  The potential for claims of discrimination based on disability, sex or age is extremely high.
If employers want to avoid tribunal claims they would be better advised to carry out a more traditional poor performance procedure involving meeting with the employee, setting out the required improvements in performance and giving the employee a reasonable opportunity to perform effectively.  However, every situation is different and each case must be looked on an individual basis. Osborne Clarke regularly advises on tricky performance issues – both from a practical and legal perspective. 
The government has recently issued a Call for Evidence on Workplace Dismissals seeking views on no-fault compensated dismissals for employers with less than 10 employees.  This would offer smaller employers the opportunity to dismiss an employee without following a lengthy procedure although risks creating a two tier employment system and concerns that this itself may discourage small businesses from recruiting to avoid unfair dismissal rules.  The government has also announced in its Employment Law Review, published last week, its intention to consult on the idea of “protected conversations” during 2012.  The idea is that an employer and employee could have a frank discussion without the contents of that discussion being used in any subsequent proceedings.  This might offer employers an opportunity to say what they really think of an employee’s performance.  Although these proposals are only at an early stage they do reflect a growing recognition of the difficulties employers face when dealing with issues of poor performance.