BW has an excellent cover story on the difficulties of terminating employees in a litigious society. Let me say that neither the article nor I are referring to terminations for reasons other than real merit/performance issues.
The article also points out that “it’s often the supervisors themselves who bear much of the blame when HR says someone can’t be shown the door. That’s because most fail to give the kind of regular and candid evaluations that will allow a company to prove poor performance if a fired employee hauls them into court. Honest, if harsh, reviews not only offer legal cover, but they’re also critical for organizations intent on developing top talent… Frequently, the work that the manager suddenly claims is intolerable is accompanied by years of performance evaluations that say “meets expectations.””
To really work, performance reviews should not be a once a year occurrence, but rather, at all levels, an ongoing dialog of feedback from supervisor to worker, with more formal, written reviews quarterly.
Most importantly, they must be honest and candid. This isn’t just-in-case CYA, but the kind of feedback that encourages and motivates your people to grow, as well as pointing out unacceptable actions and performance issues that damage the individual, you and, especially, the group.
Suppose that you have an employee who isn’t performing at an acceptable level, or is behaving in an inappropriate or disruptive manner, but short of the actions that are grounds for immediate termination for cause (such as hitting someone). Let’s further suppose that, as a conscientious manager, you’ve been giving accurate verbal feedback and previous reviews have specified the unacceptable behavior and delineated your expectations of change.
Notice the adjectives in the above, they mean that you’ve constructively discussed exactly what the person is doing that’s unacceptable and exactly what you want them to do about it—specific, not general comments.
Although this isn’t the most fun part of your management responsibilities, it’s one of the most important. In case you need some mental spine-starch to persevere, remember that you owe it to your group, whether that’s a small team or the entire company. Poor performers who “get away with it” will quickly become a black hole that absorbs energy and productivity from everyone else.
So, what do you do when all this fails to turn the person around? You need to terminate, but are still worried about legal repercussions.
The next step is a written disciplinary notice and you’ll find that it’s easier, and will yield better results, when you’re calm, unemotional, and very factual about it.
There are no guarantees that prevent someone from suing, but managers who look to HR and lawyers to cover their own performance review inadequacies can (and should) expect a lower performance rating from their own boss!