News & Insights

Rotten apples – the effect of not managing poor performance

In an article written for the Independent Schools Magazine, Louise Smyth highlights the importance of managing and maximising staff performance in schools.

With Brexit imminent many schools may be considering a freeze on recruitment in an increasingly uncertain market. It would therefore be wise for schools to implement effective performance management tools to ensure that the support staff and teachers are working at optimum levels and to avoid disillusioning the already overburdened “good eggs”, who may otherwise be left feeling as if they are carrying the can for their underperforming colleagues.
Of course, performance management in schools is not a new concept, with the Department for Education bringing in new arrangements for teacher and head teacher appraisals and for dealing with underperforming teachers in the maintained sector back in September 2012. These arrangements came into force with the aim of giving maintained schools more freedom to manage their teachers through a simpler less prescriptive appraisal system and by allowing poorly performing teachers to be removed more quickly. This two-pronged approach is vital in independent schools too: schools need to both implement and diligently pursue an effective appraisal system to identify performance issues and then have in place a robust capability procedure to deal with the issues identified.

Factors for schools to consider in dealing with performance issues include:

• Are performance issues identified and dealt with at an early stage?

o Are all staff aware of the standards and duties required of them?

o Are probationary periods used effectively to assess an employee’s suitability for a role and identify any training needs?

o Are employees given regular and clear feedback on their performance?

o Is there an effective and honest formal appraisal system in place; are concerns followed up on? (Managers who provide unduly positive or flattering feedback, which does not reflect the employee’s true performance, or simply put their heads in the sand and do not address performance issues are simply storing up trouble for the school if it needs to discipline or dismiss a poorly performing employee in the future.)

o Could the issues be addressed through training and support?

• Is there a mechanism for problems to be properly investigated? For any subsequent disciplinary action to be fair the School must have a reasonable belief in the fact that the individual is in fact performing poorly rather than simply relying for example on one individual’s mistaken perception.

• Is performance really the issue? A full investigation may reveal that there are, for example, disability or ill health issues that need to be addressed instead of, or in addition to, the poor performance.

• Does the School’s capability procedure comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, which gives guidance on carrying out fair procedures for misconduct and poor performance? An unreasonable failure to comply with the ACAS Code may render any dismissal unfair and is likely to increase the amount of compensation a tribunal may award by up to 25%.

• The ACAS Code requires:

• prompt and consistent action;
• investigations where necessary;
• employees being informed of the issues and been given the opportunity to put their case in response;
• employees to be given the right to be accompanied at formal disciplinary/capability meetings;
• employees to be given a right of appeal against all warnings as well as any dismissal decision.

• While the above are part of a fair process, the success of managing any poorly performing employee usually rests on:

• Prompt action;
• Clarity of expectations;
• Ability, in terms of skills and time, to perform the required tasks;
• A clear analysis of why the employee is not performing at present; and
• A genuine commitment to support the employee.

Remember the purpose of a performance management process/capability procedure is to raise the employee’s performance to an acceptable level. Managers, particularly in the education sector, tend to shy away from starting formal processes until they have reached the point when they want the employee to leave. That is entirely counterproductive from all respects – effect on colleagues, the manager’s stress levels, the liability which the School is then exposed to for unfair dismissal (and potentially other claims), not to mention the obvious unfairness to the employee in question. Be brave – tackle poor performance and you do everyone a favour.
If you would like any further assistance with implementing a capability procedure or managing staff performance, please contact Louise Smyth at Field Seymour Parkes on 0118 951 3635 or by email at Louise.Smyth@fsp-law.com

An earlier version of this article also appeared in the March 2013 edition of Independent School’s Magazine.