I’m often asked by employers dealing with an HR issue “Am I allowed to say that?” It’s normally in the context of poor performance, where a particular failing needs to be addressed. My response is always “yes” – and I frequently quote an Employment Tribunal Judge from a case I dealt with a couple of years ago. Addressing the claimant, who was alleging that her manager was victimising her by picking up her errors, he said “It is a duty of employers to raise performance problems – an employee needs to be aware if they are not meeting the required standards. The fact that you didn’t like what your manager was telling you is not victimisation” A recent survey suggested that 85% of small and medium sized businesses are unaware of their legal responsibilities, it’s perhaps not surprising that employers – fed on a diet of tabloid spinning of employment law stories – don’t know what they can and can’t say. But as a general principle, you can raise any issue that is affecting your business with an employee. Provided you are not doing it in an aggressive way, or threatening an employee who is simply using one of their legal employment rights (for example pressurising a woman on maternity leave to return early because her absence is causing you an operational problems), then you should be ok. In fact, as the Judge above noted, employers who don’t raise concerns are failing in their duty (as well as tolerating poor business performance). If there is any good that comes out of the Beecroft report debacle, it’s that employers might realise they don’t have to accept below standard performance and do something about it.
A CIPD qualified HR professional with over 25 years experience in a variety of sectors. Currently working with SMEs and the voluntary sector in a wide range of HR projects.
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