Performance Management and Remote Working - MLP Law

Performance Management and Remote Working

  • Employment Law
  • 22nd Oct 2021

An intrinsic part of good management is ensuring that staff are performing to the best of their capabilities. Easier said than done and particularly complicated in this new age of increased flexible and remote working. Indeed, prior to the Pandemic many employers resisted applications to work from home on the grounds that employee performance and output may be harder to monitor, with the common refrain, ‘How will we know what they are doing?’.

By Stephen Attree


An intrinsic part of good management is ensuring that staff are performing to the best of their capabilities.  Easier said than done and particularly complicated in this new age of increased flexible and remote working.  Indeed, prior to the Pandemic many employers resisted applications to work from home on the grounds that employee performance and output may be harder to monitor, with the common refrain, ‘How will we know what they are doing?’.
Yet, the Pandemic has forced a huge ‘working from home’ experiment.  In the past, the visibility of an employee was a primary factor used to determine how hard an employee was working.  Now, a fundamental shift in mindset is required.  It’s not about an employee’s presence but about their output and results.  
Monitoring performance
The basic starting point of effective performance management is knowledge – employers need to be aware of how individual employees are performing in order for them to take the necessary steps to manage that performance.  This is likely to be achieved generally by discussions between line managers and the individual employees for whom they are responsible.  Managers who have regular meetings with the staff they manage to discuss performance are more likely to pick up on relevant issues.  These meetings should take place regularly and in particular should cover:
•how the employee is doing, including positives
•areas to develop
•areas of concern
It is also good practice for there to be a formal system of assessment. That may take the form of appraisals and/or personal development plans.
Measuring performance remotely
It’s therefore important to think about diarising performance assessment, and performance appraisals, for remote employees.  It isn’t where you have them that matters but that you have them at all.  They can’t happen in the same organic way as they did in the office but they are still essential, so should be undertaken remotely (or on days in the workplace for hybrid workers). 
Some useful pointers in measuring the performance of remote employees:
1. Set clear objectives and review them regularly
This is always important, but perhaps even more so in a remote environment. Every employee needs to know what is expected of them and how their contribution will be assessed and reviewed. When the situation changes (including a move to remote working), the objective should too.
2. Determine the appropriate level of supervision
Experienced employees should be trusted to do their jobs with a focus on objectives and assessment.  Conversely, more junior employees will require, and will likely benefit from, more wide-reaching supervision.  It will be problematic for an employer who has failed to supervise and support a more junior employee, to take forward an effective performance management process.
3. Address performance concerns promptly
When there are concerns about performance, don’t wait for a formal meeting or scheduled appraisal but get a video call in the diary as quickly as possible.  Many small issues, which could normally be dealt with by having a quick, informal chat, can fester and build if the time is not taken to have the same chat remotely  This can help to avoid a situation from escalating into something more serious, requiring a formal response.  
4. Acknowledge good performance
In a remote environment, it’s not just poor performance that might be harder to observe but great work too. Find time to celebrate successes, acknowledge contribution and provide recognition. A thank you goes a long way.
5. Give regular feedback
In a remote environment, there is less time for those casual corridor conversations or informal catch-ups over a coffee. It’s therefore important to make sure that there is time set aside on a regular basis to talk about performance in general and against specific objectives. This also gives managers a valuable opportunity to check in with their team, keep track of progress, and keep feedback timely.
What to do if you have to implement a performance management process?
Stage 1 — issue identified and informal meeting with employee
The first stage is for the employee’s manager to identify as specifically as possible what the performance issue is. It may be illustrated by a single incident that demonstrates an underlying problem, or there may be a series of incidents that are relevant. It is important to be clear and specific, so the employee has less room to argue that he or she did not understand the nature of the improvements required.
Tip – this is where the job description/nature of the role as set out in the contract of employment is relevant, especially where the employee is remote and is not seeing how others perform their role or how/where they fit into a team or a department.
Then agree the steps that the employee is expected to take to achieve the required improvement should be detailed, and the period within which the improvement must be achieved should be set. The employee should be asked if any training or support is needed.
Stage 2 — no or insufficient improvement: first formal meeting with employee (right to be accompanied) and first written warning.  The meeting should be a two-way street, largely to ensure that if the employee has any legitimate reasons for the poor performance, they can be addressed immediately.
Explain to the employee that now is the chance for him or her to give any explanation there may be for the under-performance, and provide a proper opportunity for him to her to give a full account. Check again if any training or other assistance is required.
The employee should then be notified of any realistic review dates, to monitor improvement.
Tip – sometimes, an employee can perform key elements of the job well but doing the job remotely can cause them problems (ie issues with IT knowledge – we all remember stories about the slightly older teachers, who were great teachers but initially struggled with zoom, screen sharing etc when teaching kids during lockdown).  Ensure that there are no blockers caused by remote working – it may be that some employees are not suited to remote working and this should be kept under review (and clarified in writing at the outset of any agreements regarding remote working).
Stage 3 — no or insufficient improvement: second formal meeting with employee (right to be accompanied) and final written warning.
Stage 4 — no or insufficient improvement: disciplinary hearing (right to be accompanied) and decision to dismiss (or other sanction).
Stage 5 — appeal hearing (right to be accompanied).  Any sanction comes with the right to appeal.  Other than dismissal, appeal hearings against any sanctions, should be heard quickly to avoid delay and before any review date (set to monitor improvement) arises.
As with any process, it can be adapted to a degree to suit the specific circumstances, for instance, there may be some cases where the poor performance is so intrinsic to the role and so sufficiently problematic, that you can move more quickly to the serious sanctions.  We would advise, however, that your monitoring of staff performance is effective enough that you are able to tackle any issues at a relatively early stage.
Record keeping is important at every stage, ask the employee to agree the minutes.  Such meetings can be held remotely.
Performance and Misconduct
Certain behaviours can actually go beyond simple poor performance and require disciplinary action due to an employee’s misconduct.  For instance – if a remote working employee is actually lying about their whereabouts, not doing the requisite amount of work or pretending to be working when they are, in fact, watching Netflix all day – disciplinary action is likely to be appropriate.  Most managers will have a sense that an employee is behaving in this manner but some tell-tale signs to look out for include:

·         Taking a long time to respond to routine emails
·         Switching off the camera and using the mute button during meetings
·         Missing deadlines
·         Rarely answering spontaneous calls on Teams or other video conferencing sites
·         Low work output
The manager should also explore whether there are particular issues affecting the employee’s performance, for example personal matters/home life issues.  This can be particularly relevant with remote working, as issues like childcare may be causing a distraction.  Employers should also be aware that, as it is still more likely that female employees have responsibility for childcare, certain working requirements may need to be adjusted to prevent any inflexible approach by the employer being considered discriminatory (for instance, early morning team calls before usual working hours, clashing with the school run).
Employers should also consider reasonable adjustments for disabled employees, for instance those with a learning disability.  These can be small changes but have beneficial consequences for an affected employee eg. an employee with a learning difficulty, who is remote working, may benefit from clear, concise instructions over a video, rather than being sent a chain of emails and having to work out what is expected of them.  
Some employees, either legitimately or as a delaying tactic, may raise a grievance during such a process.  Care should be taken by the employer to address such issues, either as part of the performance management process or separately.  Again, such meetings can be held remotely and the minutes shared with the employee thereafter.
Good performance and capability policies are essential and should be adjusted to reflect any specifics covering remote working.  It is particularly important to outline that, if remote working is impacting on performance, the working arrangement can be withdrawn by the employer.
If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or, or follow us on Twitter @HRHeroUK.

About the expert

Stephen Attree

Managing Partner

Stephen is the Owner of MLP Law and leads our Commercial, IP and Dispute Resolution teams which provide advice on all aspects of the law relating to mergers, acquisitions, financing, re-structuring, complex commercial contracts, standard trading terms, share options, shareholder and partnership agreements, commercial dispute resolution, joint venture and partnering arrangements, IT and Technology law, Intellectual Property, EU and competition law, Brexit and GDPR.

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