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:
- 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.
- 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.
- 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.
- 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.