Proactive action or legal action?

It’s a common scenario for many small businesses: an employee isn’t performing as expected, but the issue gets sidestepped. This was exactly the case with a recent client and their employee, Sheree. For over a year, Sheree’s underperformance had been a quiet concern, impacting not just the client, but also their office manager and the rest of the team.

The office manager, proactive and keen to find a solution, reviewed Sheree’s employment contract. She found clauses that seemed to offer a way out: the employer “may, after consultation with the employee, amend the employee’s duties from time to time” and the employer “may, following consultation with the employee concerned, alter the employee’s hours of work by the giving of one week’s notice.” Based on these, the manager decided to convert Sheree’s full-time role to part-time and hire a new part-time employee for the remaining hours.

Thankfully, they called me first.

While these “catch-all” clauses are found in many employment contract templates, changing an employee’s role from full-time to part-time is a fundamental alteration to their employment contract. Attempting to make such a significant change without the employee’s genuine consent can breach the employment contract and leave the employer vulnerable to an unfair dismissal claim.

Now, it’s true that businesses sometimes need to reduce work hours or change a role from full-time to part-time due to legitimate operational requirements. In these cases, it can constitute a genuine redundancy of the full-time position. However, in Sheree’s situation, the office manager planned to hire another part-time employee to cover the hours being removed from Sheree. This meant Sheree’s “redundancy” would not have been genuine, and the business would have been exposed to an unfair dismissal claim.

The Right Way to Handle Underperformance

My advice to the client was clear: the priority needed to be addressing Sheree’s underperformance directly. As her performance hadn’t been managed since she started, we needed to dig deeper. This involved understanding what was hindering her performance and then providing her with the necessary support and a fair opportunity to improve.

Tackling employee underperformance can feel like a daunting task, demanding both time and energy. This case highlighted the importance of early intervention.

To prevent similar situations, we’ve now implemented a formal probationary review process for all new employees. This ensures that any issues are identified and addressed early on, providing crucial support and guidance from the outset. It’s not just the fairest approach for new hires; it’s also a far more efficient and less stressful path than dealing with prolonged underperformance later down the track.

Is your business proactively managing employee performance, or are potential issues being overlooked? Robust processes and clear communication are key to a fair and productive workplace.

Don’t wait for underperformance or complex contract issues to become major headaches. Proactive HR management is key to a fair, compliant, and productive workplace.

Contact us today for a comprehensive review of your HR practices.

We can ensure your HR processes are effective and your business is protected.