Will employment law changes encourage people to tackle poor performance?

Some people, especially employment lawyers, are getting excited about “the most radical reform to the employment law system for decades“. (Shouldn’t that be “of the employment law system”?) But, as Croner’s Paul Clarke notes, we still don’t know how many of these proposals will make it onto the statute book. The government has simply said it is going to consult on a number of issues and much of it might just be kite-flying. Even so, employment lawyer Paula Whelan, writing in HR Magazine,  believes the measures suggested so far, and especially the introduction of protected conversations, “will help to address a culture of non-management of workplace performance issues.” But I’m not quite as convinced.

Do we have “a culture of non-management of workplace performance”? Well it has certainly been cited as an issue in almost every organisation I have ever worked in. The perceived impact of the problem varies but, in every sector, you will hear the complaint from senior managers that ‘people just don’t tackle poor performance round here’.

Is this a recent problem? Not unless you count two decades ago as recent. I remember discussing this on my CIPD course when I was a rookie HR manager. Most people in our group reckoned it was a problem in their organisations. As a result, I developed a performance management course, in collaboration with one of my classmates, and we ran it in each other’s companies. At first, we focused on helping managers to understand employment law but we soon realised that it wasn’t just lack of legal knowledge that was stopping people from tackling performance issues; it was discomfort about having the conversations and a lack of the skills to deal with the inevitable conflict.

And that is as true now as it ever was. These days, I am more likely to be working with the people who manage the people who should be tackling the performance problems but the issues are exactly the same. And the senior people are just as reticent as their more junior colleagues. Typically, they bang on about how ‘our managers don’t manage performance problems’ while ignoring the fact that the managers’ managers don’t do so either.

Protecting conversations won’t make any difference when people are reluctant to have the conversations in the first place. The fear comes not from fear of the law but  from the discomfort most of us have about challenging people and the potential conflict it might cause. The complexity of the law is often used as a convenient excuse but its not the main reason for performance management avoidance.

Is this “culture of non-management” peculiar to Britain? Does it have something to do with British diffidence? I’ve worked in organisations in five other EU countries, plus a couple in the Middle-East and North America and, guess what? People complained about the problem there too. Wherever they are, most human beings don’t like conflict. Conversations about poor performance are uncomfortable in any language.

So legal regimes may change, employment laws may come and go, unfair dismissal qualifying periods may wax and wane but it makes little difference to the general reluctance of managers to deal with performance problems.

What Paula Whelan called the “culture of non-management of workplace performance issues” does not come from burdensome law. It’s not fear of the conversation being repeated at a tribunal that puts managers off, it’s fear of the conversation itself. Lack of performance management stems from a lack of skill and, more importantly, a lack of will. Politicians can’t legislate for that. A problem that was not caused by the law can’t be solved by it.

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8 Responses to Will employment law changes encourage people to tackle poor performance?

  1. Pingback: Will employment law changes encourage people to tackle poor performance? - Rick - Member Blogs - HR Blogs - HR Space from Personnel Today and Xpert HR

  2. A very interesting post….

    First I must confess I haven’t had the opportunity to review the information released by the government on proposed change but have seen some of the noise on Twitter about it.

    That said, whicever legal framework we have, I think you have hit the nail squarely on the head in highlighting the issue of the conversation itself. Getting an individual to have a challenging conversation with another individual brings out all the feat of conflict that seems inate to human nature and it does appear that the more senior the individual is the less likely they are to confront the situation (or more likely to involve a third party such as an exec coach to do the dirty work for them)

    I believe it’s the organisations who find routes to helping managers feel more comfortable to effectively confront issues that will see performance improve.

  3. Doug Shaw says:

    Great post and follow up from Rob. Disagreement should be done respectfully. I talk a lot with customers about fostering open respectful disagreement within the workplace. If you can do this openly around day to day issues, rather than trying to coerce compliance, this in turn seems to help make having those difficult and more private conversations….less difficult.

  4. Kevin Ball says:


    Taken as a package, the proposed changes to the Tribunal system will make it more difficult for individuals to make a claim (two year qualifying period, fees for applicants, review of procedure likely to increase use of deposits, reduction of collective consultation periods, removal of whistleblowing claims arising from employment contracts). Even where a claim is made, the changes would put the impetus heavily in favour of settlement before hearing (protected conversations, ACAS ‘new’ role, ‘rapid resolution’ for small firms, standard text compromise agreements, financial penalties for employers found to have breached the law). Why? To reduce the cost to the government of running the Tribunal system and to reduce the costs to organisations of defending claims.

    If an employer knows that the chances of a claim are reduced and the ‘get out of jail cheap’ card is there to be played there is less reason for them to be scrupulous about bothering with what you or I would call decent management. The line manager who consistently fails to manage their staff would be at less legal risk in penduluming from neglect to brutality than they are now. Weak managers, under pressure from superiors, only have to drag someone into a protected conversation, download the CA from the BIS website, sign it and write a cheque and they are free and clear. Even if the baffled employee refuses to sign the damn thing there are so many potential hurdles for them in the proposals that the risk/reward balance is all on the employer’s side. In that way these measures make it easier for poor managers to get away with their lack of will and lack of skill. If these changes are enacted, the politicians haven’t legislated to prevent poor management – they’ve legislated in favour of it.

  5. GrumpyLecturer says:

    The introduction of labour law into the Employment Relationship in the 1980s was a reaction by the extreme right of the then Thatcher government to curb the powers of the trade union movement. The future repercussions of such a move were never discussed or debated the introduction of individual labour law was considered the best alternative to employees’ ability to take collective action.
    In hindsight the ability of successive Conservative Governments to avoid European Labour Law and the Social Charter isolated the UK Employee Relationship from the full application of a more legalised relationship between employers and employees. This obviously was to the benefit of employers throughout this period 1980-1997. The UK government during this period fought tooth and nail to prevent EU Employment Law being implemented in the UK.
    The final concession to fully implement both UK and EU Labour Law and particularly the Social Contract in 1999 has caused mayhem in the Employment Relationship in the UK. The more legalistic alternative to collective bargaining through third party representation has proved to be more onerous and restricting than the system it was brought in to replace.
    The simultaneous move in the 1980s towards a more unitarist, individualist, approach to the Employment Relationship through the auspices of first Japanese work systems then the HRM approaches of the Northern States of American has added to the confusion. Again this ideological approach was firstly introduced to move employee alliance towards the employer rather than any trade union. The legitimating of this ideological repositioning was that where employees came into contact with rogue or poor employers then Employment Law was there to ensure fairness. Thus grew the present Employment Relationship built on the utopian dreams of HR proponents providing a picture of employment as a collective of individuals with similar interests striving for the betterment and success of the organisation for which they work. Labour Law was always in the background as recourse for those employees who may encounter poor employers which, at the time, were considered to be few.
    We now find that that this system has, to put it bluntly, gotten out of hand with Industrial Tribunal cases exponentially growing and settlement figures rising. However, the major fault with the system is the complete lack of knowledge amongst employers and, dare I say it, HRM managers as to what Employment Law actual covers. A whole new genre of law has emerged since 1986 built around employment. It is now a business with its own literature and expert exponents. Employee Relations, as a result, has become devoid of passion; it has become an area of specialised knowledge beyond the comprehension of most; ‘fairness’ has been replaced by the a rational legalistic system in which the protection of the working class has now become the province of professionals in which representation becomes a question of money not principle.
    Thus the idea of “a culture of non-management of workplace performance” is not that farfetched as both parties to such conversations on individual employee performance is fraught by lack of knowledge on both sides as to what constitutes the legal ground rules as to what can be discussed and how it can be discussed.
    Governments and employers once welcomed this more legalistic approach to the Employment Relationship to remove employee collective action. Twenty five years on governments and employers cannot just shout ‘foul’ because the system they fought hard to introduce, which included violence and prison sentences against trade unionists in the 80s, has now turned to ‘bite them on the bum’. Moral of the tale always be careful of what you wish for. The cost of restoring ‘managements prerogative to manage’ in the 1980s has resulted in managements inability to manage.

  6. I have addressed another aspect of the problem you identify with protected conversations at: http://www.seanjones11kbw.com. I agree that it the proposals don’t seem to match the reality of the workplace.

  7. And I added my two-penn’orth in the comments to Sean’s blog the other day. Suffice to say I can’t see protected conversations being in most cases anything but a disaster, for both parties.

    I agree that it will provide little incentive for proper performance management, and could provide a way of legitimising “off-the-record” bullying. It will also inadvertently lead to employers who have actually taken proper steps to deal with performance issues fairly being unable to rely on those steps in tribunal.

    The main reason I’ve heard cited for actually wanting this is in the context of employers trying to use the without prejudice rule to suggest to an employee that it might be in everyone’s interests to call it a day and take a payoff. There’s a reason the WP rule is limited to attempts at settling existing disputes, and if I can muster the strength I might blog sometime about why I think chipping away at this distinction is misconceived.

  8. Pingback: The Most Radical Employment Law Reforms for Decades? Or a Spectacular Own-Goal? | News | Jobsworth by Michael Scutt

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