Performance Management or Discipline
Often employers are faced with the tough decision of how best to progress with an issue when deciding between a performance management process or a discipline process.
In Hines v TK Security Limited concerns were raised over the methods of the security guard (“Mr Hines”) when ensuring the door to Ward Furniture Limited was locked at night. The owner of Ward Furniture Limited (“Mr Ward”) and the operator of TK security Limited (“Mr Shadbolt”) watched CCTV footage of Mr Hines doing his checks. The footage showed that Mr Hines entered the shop floor, glanced at the roller door from about 2 meters away and then carried on.
Mr Ward and Mr Shadbolt were not satisfied with the methods Mr Hines used to ensure security for MR Wards business and as such TK Security sent him a letter stating the allegations and a copy of a complaint that had been laid by Mr Ward after he noticed that the Roller door remained unlocked on numerous occasions. The letter stated that Mr Hines’ actions “may have potentially caused me to lose trust and confidence to perform your role” and stated that “this is a serious matter and your future employment with TK security may be in jeopardy”.
Mr Hines admitted that not checking the roller door was a mistake but that the method he followed was inline with the training he had received. Mr Shadbolt disagreed with Mr Hines about the training and made a preliminary decision that Mr Hines was to be dismissed. After considering Mr Hines concerns over the substantive justification for dismissal the final decision to dismiss Mr Hines was made. Mr Hines raised a personal grievance for unjustified dismissal claiming that his failure to check the roller door was a performance issue and not a misconduct issue.
The Authority commented that “a performance issue may arise in circumstances where an employee does not carry out a task because s/he is unaware of it, does not have the requisite skill to execute it, or where there is some other external impediment preventing the employee from performing a task”.
As none of the criteria outlined by the Authority were relevant to Mr Hines’ case, the issue was deemed not to be a performance issue.
The Authority was of the opinion that TK Security was entitled to find the actions of Mr Hines a fundamental beach of his employment obligations.
Mr Hines tried to argue that in their invitation to the disciplinary meeting, TK Security Limited did not state that Mr Hines behavior could be considered misconduct or serious misconduct.
It is interesting to note that the Authority held that there is no legal requirement for an employer to use any particular words or phrases when conveying the potential outcome of a disciplinary matter and that in this case the possible outcome of dismissal was discussed with Mr Hines before he was required to provide a response. Mr Hines claim was dismissed.
Lessons to be learnt:
It is vital for employers to ensure that when they are dealing with a potential performance management or discipline issue that they are aware of the correct path to take and the correct procedure to follow. TK Security Limited were successful in their case because they followed the correct procedure but just as importantly, they identified from the start of the issue the right path for them to take. Often employers get into issues themselves when they try to act without first ensuring they have a solid understanding of process and procedure. Employers often fall into the trap of thinking performance is a discipline issue which is where problems arise because; while they should be going down a performance management process, they have mistakenly chosen a discipline process. Discipline is about attitude and behavior while performance management is based purely on issues of skills, knowledge and ability.
If you have any difficulty distinguishing between the two, it is best to seek professional advice before commencing either process. Give us a call on 07 838 0018.