01 Apr 2022
Appraisal processes and monitoring performance can be a very useful process as it gives you and your manager the opportunity to regularly review how well you are performing at work.
This is particularly important for those working in the education sector due the ongoing issues with under-staffing which has resulted in many being required to take on additional hours, duties and responsibilities.
This article will outline some of the legal obligations on your employer when it comes to managing your performance.
What is an appraisal?
This is a meeting usually carried out by your line manager primarily in order to discuss your performance.
An appraisal should be an open and honest discussion with your manager and it is a good opportunity for you to both to reflect on your current performance and mutually agree any future objectives and targets.
It is also a chance for you to put forward any concerns, to discuss your professional development plan or training requirements relating your role.
How often should I receive an appraisal?
There is no legal requirement to carry out appraisals although it is best practice for your employer to carry out regular appraisals with you, at least once per year.
Your employer’s policy should set out further details relating to their appraisal cycle.
If your employer fails to offer an appraisal, that of itself is unlikely to give rise to a legal complaint. However, if you find yourself being subjected to a performance improvement process, the absence of any regular performance reviews or annual appraisals could well be relied upon when it comes to challenging the fairness of the decision-making process.
Employers who suddenly decide that they have performance concerns but who haven’t regularly met with their employees or appraised them may find it much harder to justify taking further action, as everyone should be given an opportunity to improve following receipt of feedback.
How do I prepare for my appraisal meeting?
It is extremely important that you take a pro-active approach to your appraisals as it is one of a few occasions during the course of your employment that your employer will review your past performance and set goals for the future.
The process may also be linked to pay banding or pay increases.
It is therefore vital that you prepare in advance by completing appraisal forms thoroughly and, if necessary, collating any relevant documentation in support. You may find it useful to review your most recent job description, past meeting notes or feedback form and your pay and performance management related policies before attending your appraisal meeting.
You should also request any documentation currently not available to you from your line manager prior to the appraisal that you feel might be relevant.
What should happen during my appraisal?
During your appraisal your performance, objectives and needs should be openly discussed. Objectives should be “SMART” – specific, measurable, achievable, realistic and timebound.
However, you should watch out for any comments that might be considered discriminatory. For example, if you suffer from a disability and this impacts on your ability to undertake your role, your line manager should ensure that the appraisal process and comments made fall in line with any agreed reasonable adjustments, for example to performance targets.
You must also remember that an appraisal isn’t a disciplinary process and must not be used to impose disciplinary sanctions.
What should happen following my appraisal?
Following your appraisal meeting, you are usually provided with a written summary by your line manager which should cover all the points of discussions and your and your manager’s comments. This is usually signed off by both parties during or shortly after the appraisal.
It should ideally set out your targets, objectives and personal development plan and should be made available to you during or shortly after the meeting.
If you disagree with the comments made or any are inaccurate, these issues should be raised and queried with the appraiser. Such comments may be relied upon in the future, so must be 100% correct.
What if I am under performing at work?
It is an implied term of your contract of employment that you will perform your role to a minimum required standard. The minimum standard can vary based on the requirements of your role. If your performance falls short of the minimum required standard your employer may implement a performance improvement process, which could ultimately lead to dismissal.
If you are under-performing you should be given a ‘reasonable timescale’ to improve and also be provided with the appropriate support and training. It is important that you are notified by your employer that your performance is being monitored and that your progress is kept under review. You should try to mutually agree a timescale and ongoing monitoring system to help you meet the required standard (i.e. a performance improvement plan).
If you fail to sufficiently improve within the stipulated timescale then a formal hearing may be arranged.
You should be notified of the hearing in writing and your employer must set out the nature of the shortcomings in your performance, the procedure to be adopted and the possible consequences if your performance does not improve going forward.
The aim of the formal hearing is to enable you to fully explain your case, possibly try to identify the cause of any under-performance and try find a solution to the problem.
This is where the absence of any appraisal process or performance management process comes into play. It is essential, to ensure fairness, that the employer puts you on notice of the problems and affords you an opportunity to improve first. Moving straight to dismissal without prior warning and where you have 2 years’ service or more, could lead to an unfair dismissal claim.
Can I be fairly dismissed for poor performance?
If you fail to improve your performance within the agreed timescale your employer may take the decision to terminate your employment.
It is recommended in the ACAS code that you should be given at least two warnings before you are dismissed on the grounds of poor performance (capability). Please note this recommendation does not apply if you are still in your probationary period or if the matter concerns an act of gross misconduct.
If you feel that the performance process is unfair or discriminatory, you should consider lodging a grievance about it. If your grievance is upheld, your employer may feel obliged to re-start the process or adjust it to ensure fairness and equality.
If, however, you are ultimately dismissed and the employer has failed to follow any of the above-mentioned procedures, failed to provide you with a reasonable timescale to improve, sets unrealistic targets or if the allegations of poor performance are unfounded or unsubstantiated you should appeal against the decision setting out your reasons why it is unfair. Your Association can help with advice.
You may be able to pursue an unfair dismissal claim but this would ultimately need to be determined by an Employment Tribunal and you must have 2 years’ service or more.
Often, however, these problems can be resolved informally, through discussion and co-operation with your manager or an appeal or grievance process. Litigation should be a last resort.
Please be aware that if you have grounds to pursue an Employment Tribunal claim, such as unfair dismissal or discrimination, there are only very short timescales within which to act and claims must generally be actioned within 3 months (less a day) of the date of the alleged unlawful act. The precise time limits will depend on the circumstances of your case.
The information contained within this article should not be used as a substitute for taking legal advice.