Performance or Misconduct?

Performance or MisconductA challenge for many managers is identifying and differentiating between misconduct and poor performance issues. Some don’t know how to, others choose not to.

Clients often come to us about an employee who has potential but who is, in fact, bone idle, or with an employee who is endlessly late, but it’s always someone else’s fault. Our clients ask us whether we can help them discipline the employee on grounds of poor performance, but in reality, they should be looking at misconduct.

What (some) organisations currently do

Performance, performance, performance! In some organisations almost every staffing issue is classed as poor performance. Employees who are late, make mistakes, mess up their expenses claims, bad mouth their bosses, crash company vehicles, misquote, turn up to work still under the influence etc. All issues will be considered ‘poor performance’. The impression we get is that managers feel that using the ‘m’ word (misconduct) is as aggressive, or confrontational as using the ‘f’ word.

Get out of jail free: In other organisations we see a different scenario. No one talks about poor performance, misconduct or capability issues at all. Instead, at the first whiff of something that smells like conflict, managers start talking settlement agreements. How can we get them out fast? With minimum fuss and at minimum cost? This can smack of ‘fear factor’ off the Richter scale!

Head in the sand: In a third category of business, again, no one classes poor performance as anything at all. The only method of managing poor performance is to pretend it’s not happening.

Why this 👆 is often not efficient or effective

Time and money: Managing someone through the poor performance procedure typically takes six months or more and involves huge amounts of management time. Managing misconduct is generally far simpler. Therefore, if something is a misconduct issue it should not be managed as a poor performance issue unless, again, you wish to chuck time and money down the drain.

£££’s: Settlement agreements cost money. Lots of money. Sometimes using compromise agreements can be considered a good use of money, but more often than not it will just feel like money being chucked down the drain.

Bad practice: Ignoring poor performance is bad practice. It’s bad for business, bad for employee relations, bad for customer service, bad for productivity, bad for quality and bad for managers who then look incompetent. Just bad, bad, bad!

What is the difference between poor performance and misconduct?

  • Performance is related to ability – This is often outside the employee’s control, e.g. insufficient knowledge, experience, or a role above their current potential.
  • Misconduct is related to behaviour – This is usually within the employee’s control, e.g. poor attitude, laziness, dishonesty, not listening to instructions, not following procedures.

It is important that you fully understand what you are dealing with before you take any formal action. If you mess this up, or change your mind part way through, this can have serious consequences, if subsequently you want to dismiss the employee.

If you come across issues that are the result of neither performance nor misconduct, then you may need to manage the employee on grounds of Capability. This will be the case for example where there are ill health issues, learning difficulties, disabilities etc.

Improving the knowledge and confidence of managers

To avoid throwing money down the drain, here is a mini training session from us at Jaluch. Hopefully this will clarify the difference between what is genuinely poor performance and misconduct. Once this is clearer, it can be the first step to managing these issues more confidently.

An example of poor performance vs misconduct

Sam works on the till at your local corner shop. His manager says that he is not performing to the required standard and wants to initiate a poor performance procedure (even corner shops have to do it by the book sometimes!)

The reality is, Sam has a till that doesn’t always quite add up at the end of the day. Is this performance or misconduct?

If Sam’s till is out by anything from a few pence to a few pounds each day, is this down to:

  1. Carelessly giving customers change and occasionally getting it slightly wrong
  2. Not counting in to the till cash that customers give him
  3. Being too slapdash
  4. Pocketing the odd 20p piece
  5. Not being able to add up, or work out change
  6. Being clumsy – he is always dropping pennies and stuff on the floor and not remembering to pick it up
  7. Messing up when he is under pressure because the queue to pay is long and makes him nervous
  8. Failure to challenge people who short change him when paying

The list could go on. But let’s keep it short. Which of the above is a misconduct issue and which is a genuine performance issue?

Performance or misconduct?

In the example above, nos. 1-4 are probably misconduct (down to Sam’s neglect, bad attitude or dishonesty – or a combination of all three).

Nos. 5-8 might be misconduct, but they are much more likely to be a poor performance issue in that:

  • He doesn’t have the skills or aptitude to add up in his head or work confidently with cash
  • He might be naturally clumsy and forgetful and hasn’t yet developed coping strategies at the till to minimise the impact of this
  • He has not yet developed the skills to work under pressure whilst staying calm
  • His assertiveness skills need developing so he feels able to challenge customers who underpay

Now take a look at your team

Applying this to your workplace, think about an individual in your team or organisation who is not quite performing to the same level as the rest of the team. If you chose to manage it formally, would you be dealing with misconduct or poor performance given your understanding of what is happening and the individual concerned?

Understanding how to differentiate is only the starting point for managing misconduct or poor performance, but it is a starting point that holds so many back from managing confidently.

We hope that things are now a little clearer.

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Need further training or support?

  1. If you want commercial HR support, delivered in plain English then drop us an email or call us on: 01425 479888. We offer pay-as-you-go, contract free support. If you’ve ever been tied into a long, onerous HR contract, we know you’ll love this idea!
  2. If you can deliver training yourself, try our professional, pre-prepared training courses from Training Wizard. Options include Managing Performance or Managing Discipline and Dismissals.
  3. We can deliver online or face-to-face training for your managers including Managing Performance and Managing Discipline and Dismissals.

Contact us for more information.

The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individuals matters.

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