Public sector performance is not an employment law problem

Can we just clear something up? There is no special legal employment protection for the public sector. Public and private sector workers are covered by the same legislation and case-law. Some public sector workers, such as civil servants, are technically crown servants rather than employees but, for most practical purposes, their legal rights and levels of protection are no different from those of any other employee.

My reason for banging on about this is that there seems to be widespread misunderstanding about it. Perhaps it is because of the way the government’s pronouncements on employment law have been spun – making it easier to sack all these lazy public employees, and so on. Whatever the reason, in the debates and discussions I had last week about government proposals to change employment law, some people were under the impression that public sector employes have an extra level of legal protection. Which they don’t.

Sure, the CIPD found that, in general, public employees are less likely to face disciplinary action than their private sector counterparts and, even when they do, the process takes much longer. But this is simply due to the way employment law is applied and interpreted in many (though not all) public sector organisations. If public employees do enjoy extra protection it is a de facto protection, built up by the cultures and practices in their organisations, not a de jure protection under the law.

Improving performance management in the public sector is no different from anywhere else. The changes needed are organisational not legal – and much of it is to do with managers’ confidence. Here are a few things that can help:

  1. Give managers a good understanding of the law and the organisation’s procedures. This makes the law less intimidating and managers learn to see the disciplinary procedure as a management tool, not an obstacle. De-mystifying laws and procedures reduces the fear of them.
  2. Coach managers in the art of difficult conversations. Most of us don’t like tackling performance problems because it is uncomfortable. Helping people to deal with their own discomfort (for it will never go completely) and have the conversations anyway gives them the confidence to act.
  3. Provide political backing. In the public sector this may mean ‘Big P’ as well as ‘small p’ political. Managers need to be certain that, if they stick their necks out and tackle performance issues, their bosses will not hang them out to dry as soon as things get tricky. Senior executives must back their managers all the way, even if they make the odd cock-up.
  4. Stop colluding with each other. All too often there is an unwritten truce at senior level. I won’t ask questions about performance management in your area if you don’t ask questions about it in mine. If, as managers, we let each other off the hook about performance problems, avoiding such issues becomes normal.

OK, this all sounds very simple but some of it is quite difficult, especially number 2. We often hear glib statements about ‘creating a performance culture’ but, as the great Edgar Schein told us, culture is about unspoken shared assumptions and these take time to change. The steps outlined above, though, will go some way towards creating the unspoken assumption that ‘it’s right to tackle performance issues here’. In many organisations, the assumption still persists that ‘it is too difficult/dangerous to tackle performance here (and anyway no-one really gives a monkey’s)’. It is these assumptions, not the law, that need to change.

There is no special law that makes it more difficult to manage performance in the public sector. The restrictions and reluctance are all due to decisions made in those organisations over the years. This is a management problem not a legal one. Sweeping changes in the law are unnecessary and probably wouldn’t make much difference anyway.

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7 Responses to Public sector performance is not an employment law problem

  1. Pingback: Public sector performance is not an employment law problem - Rick - Member Blogs - HR Blogs - HR Space from Personnel Today and Xpert HR

  2. Lee Alley says:

    “…in general, public employees are less likely to face disciplinary action than their private sector counterparts and, even when they do, the process takes much longer.”

    Hmmm, so it seems, all things being equal, assuming the public sector is made up of a reasonably broad cross-section of the general population (not supported by empirical studies, BTW, but we’ll be gracious for the sake of argument) and a normal bell-curve distribution of performance and output by the public sector employment base, what you’re saying is public sector managers are crap.

  3. David Widdowson says:

    Whilst I dont disagree with your points one area where there is a difference between the public and private sectors is in the area of contractually binding disciplinary procedures. This isn’t of course a matter for legislative change but dies t some extent explain a reluctance (where this si the case) on the part of managers to take firm decisions in managing people.

  4. Rick says:

    Good point David. I’d forgotten that. Don’t some private sector employers have contractual disciplinary procedures too?

    What is the effect of this? Surely managers need to follow said procedure if they want to discipline someone without the risk of being taken to a tribunal, whether the procedure is conrtactual or not?

  5. Lee Alley says:

    All private sector employers have a legal requirement to follow a disciplinary procedure with minimum requirements. This doesn’t avoid being taken to a tribunal but avoids the risk of *losing* at a tribunal (a local small business near us is 35 for 35 at industrial tribunals because of religiously following procedure and careful documentation). There is much folklore and HR-by-Daily Mail out there, though.

    Regardless of the contractual nature of the procedure, the law states no one can be sacked without [due process] thus the wide-spread practice is approximately: 1) informal/verbal warning 2) formal written warning, 3) termination or variations thereof.

  6. Effective managers know they must take action to deal with common business challenges on staffs performance, attendance and conduct – while acting fairly and reasonably – the best way to minimize risks in employment law.

    Procedural requirements across public and private sectors are broadly similar (though see arrangements for raising concerns about the practice of doctors). With that in mind, it can be more difficult to judge the actions, efforts and performance for professionals than more “structured” roles http://www.attractorconsulting.com/2011/01/too-hard-to-sack/. This relates to teachers and nurses in the public sector or solicitors and barristers in the private sector.

    This issue is similar to the preconception health and safety law is too restrictive. How many organisations routinely act (or fail to act) because of a fear of legal challenge. In both these areas, organisations should look at their practice. Are managers effectively supported by policy and appropriate professional advice? If policy and advice are poor, business suffers – never mind what the law says.

    Obviously it’s important for Human Resources and Health and Safety Advisers alike to ensure their advice is business-focussed, enabling managers to work proactively in the interests of the business, while complying with the law. Is this where public and private sectors part company?

  7. MrsMarkleham says:

    By and large, private sector does not have contractual disciplinary procedures. I and any employment lawyer worth their salt would not want a client contractually binding themselves to a particular procedure. There are too many examples from the NHS of doctors seeking injunctions to prevent dismissal because a procedure has not been followed -a far more powerful weapon than a mere unfair dismissal claim.

    And the reason they exist in the public sector is collective bargaining, which is in turn dependent on the density of trade union membership. Why is there less unionisation in the private sector? Individual employment rights are one reason, of which the most important one is unfair dismissal, introduced at the beginning of the 70s as one of the answers to excessive union power – an escape valve that lets off some of the industrial relations steam, allowing individual cases to be dealt with individually rather than leading to collective unrest. Now I’m not saying that getting rid of unfair dismissal protection would return us to the 60s, too much has gone under the bridge since then, but if there is too much eroding of employment rights I predict a recruiting campaign by unions, greater militancy, and employers’ lives not being made any easier as a result.

    Given that the public sector is already unionised up to its eyeballs, the place this is going to hurt most is the private sector.

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