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.