Yes said the EAT in Starling v Epsom & St Helier. Ms Starling, a nurse, was asked to switch on an incubator, but she became unwell and was taken to A and E before she could do so. She told a doctor about the incubator at the hospital the next day. The Trust issued an improvement notice, the equivalent of a first written warning, so she resigned. In upholding her claim of constructive unfair dismissal, the EAT criticised the Trust for not meeting Ms Starling and said, had they met her, she would have been fully informed, and the Trust could have decided on the full facts. So, how can you manage performance effectively while avoiding breaches of the implied term of trust and confidence?
Follow your own policies
If an informal approach hasn't worked, check the requirements of your internal policies before starting any formal process and comply with them as far as is reasonably practicable. Keep your capability procedure non-contractual so that you can change it without consulting staff.
It is a matter of good employee relations to meet your employee to discuss performance issues before acting. If you don't, you risk any action being viewed as unfair.
Consider all the circumstances
Before issuing a penalty, consider your employee's previous performance, standard of work, length of service and any circumstance that mitigates their poor performance.
What should the improvement note contain?
The note should identify the problem, explain what improvement is required and how quickly your employee must improve. Warn them about the next stage of the process if they fail to improve but describe the support that you will give them to help them reach the standard you require.
The emphasis should be on keeping them in the business not managing them out.