Author: Daniel A. Lublin
Frequently, I’m consulted by employers seeking to dismiss their habitual underperformer. My usual prescription for a tidy divorce: gather ammunition and create a paper trail documenting any and all allegations and concerns.
Typically, this is accomplished by a series of negative performance appraisals. If the employee then wishes to go to war, he’ll have a mountain of evidence to overcome.
Performance appraisals can, however, be the proverbial double-edged sword. For maligned employees, I often recommend that they prepare for the battle by building a supportive documentary case; in essence, challenging a negative or unjust performance appraisal. Then, should legal confrontation ensue, the employee has the armament to contest any injurious inference drawn by a series of unsatisfactory appraisals.
The employee should always document their response to a challenged appraisal in writing and request that the response be placed alongside the appraisal in the employee’s file.
Court cases clearly indicate that employers owe a duty to provide employees with the opportunity and means required to improve underperformance. Judges state that employers must take progressive steps to warn employees if their work is not meeting specific standards and they must clearly identify areas of concern.
In addition, employers must provide sufficient time and opportunity for improvements. Therefore, for employees faced with a negative performance appraisal and an inclination to dispute accusations of underperformance, I offer the following advice:
- The employee should always document their response to a challenged appraisal in writing and request that the response be placed alongside the appraisal in the employee’s file.
- Performance appraisals should be remedial in nature. Point out that the standards expected are not objectively reasonable, are beyond the employee’s capability, were never communicated, or suitable instruction and supervision were never given to assist in meeting those standards.
- Although remedial, negative performance appraisals usually levy reprimands to build and support the employer’s case for dismissal. Therefore, the employee should ask for sufficient time and support to correct any alleged deficiency. Also, state that all of the company’s concerns can’t be addressed without assistance and while expected to simultaneously maintain a regular workload.
- Express surprise and bewilderment if there is any marked inconsistency with previous positive appraisals or accomplishments and point out any historical or recent achievements.
- State that prior to the appraisal the alleged shortcoming was never verbalized and, as far as understood, the employee was just following the procedures or protocol in place.
- Note if there are any perceived inequities in the evaluation process of other less-scrutinized employees.
- Where specific employee actions or events are chastised, the employee should state that their version of the events was not solicited before this criticism was levelled and then document this version regardless if it’s now sought by the employer.
- Ask for clarification and examples, in writing, regarding any aspects of the appraisal that are misunderstood or that may potentially be challenged. Point out that the explanation first provided was so vague that the underlying concerns can’t possibly be addressed. The reluctant employer will then be held to the explanation proffered.
- If there is any policy detailing the evaluation or appraisal process, point out any inconsistencies with the policy and state the appraisal did not meet the required criterion.
- An employee who wishes to keep his or her job should ensure that the tone of a written or oral response is professional and corrective, but not aggressive or accusatory. Otherwise, the response is likely to fall on deaf ears, or worse, condemn the employee’s fate.