Under the suggested legislation, employers would be able to challenge unproductive staff - or advise them to consider retirement - without fear of legal action.
Apart from the mechanics of initiating and conducting such a conversation, some record would still be required to avoid any misunderstanding in the future. The legislation could lead to extra layers of responsibility for the head of HR [of the MD or FD at the smaller end of the SME market] and charges of lack of objectivity, discrimination or worse.
The business itself, meanwhile, might prefer to be concentrating on surviving or growing in a very difficult economic environment - and therein lies an alternative.
In any business, the best way to engender harmony and goodwill in the workforce is to have an open and transparent policy on performance management that clearly demonstrates a two-way communication channel and works for everyone and is a credible alternative to legislation.
Even if the protected conversations legislation was to be enacted, performance management would be capable of supporting it via individual performance audit trails, which could be to the advantage of the employer or employee, or both, in a dispute about retirement or laziness [or other] at work.
The abolition this year of the default retirement age [DRA] is itself a challenge for both employers and employees and I feel that further legislation would lead to more legislation, as workarounds are discovered by both employer and employee.
A reduction in red tape for small businesses was something promised by the coalition Government, yet "protected conversations" would introduce more and tie up firms' time when it could be better spent on the business.
Regardless of individual unproductiveness, align them and indeed all employees to the objectives of the business, after identifying everybody's competencies. This step in a performance management programme can signal the start of the business as a whole becoming more productive and efficient.
Identify where upskilling is required - and provide it; track and record progress made.
Modify behaviour and attitudes, if required. Best practice is to have Goals and Values visible for all to see so they know what everyone is working towards.
Have a system in place that can identify the best in the individual and find
out if he or she is a square peg in a round hole. A good system will highlight if the individual is a square peg in a round hole - and also if the problem is top down.
Provide a record of capability for all employees, thereby supporting a common and consistent set of guidelines and principles that apply across all employee of the business; this will help the employer to see how the performance of underperforming staff compares to the rest and also show if the performance of the majority needs to be improved.
Using an audit trail obtained from the above actions, demonstrate just cause and follow due procedure for releasing those who remain unproductive, despite the steps taken above.
Laying off staff for being unproductive despite putting them through a programme of improvement has its advantages, because an under performing employee (i) may impact on overall attitudes, behaviour and morale of staff (ii) may be disruptive in the workplace (iii) is unlikely to meeting objectives, including hard business goals.
Having staff who are unproductive - or performing poorly due to low morale, for example when older workers feel in limbo due to the scrapping of the DRA - may be the fault of the business.
Are the staff in the wrong job, a square peg in a round hole, or lacking in guidance from superiors? Can motivation be better?
A programme of performance management addresses these and many other issues, including those around the scrapping of the DRA. It provides the business with the opportunity to review the performance of all staff and therefore put the company on a stronger commercial footing.
Within this context, the idea of "protected conversations" begins to look somewhat parochial and unnecessary, although it has stimulated debate, such as this one.
Shirley Barnes, client relationship director, Dinamiks
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