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Confidential discussions about an employee's performance have to be handled carefully - or could backfire.

As an employer, you may sometimes want to talk to your employees "off the record". For example, you may have an employee who has been performing poorly recently. Ideally, you do not want to go through any performance improvement procedure but you are prepared to pay them to leave. You decide to have a chat "off the record". If they take the deal, great.

If they don't, well, you can always follow the correct procedure and no harm done, right? Wrong: in fact, you could land yourself in a lot of trouble.

An "open" conversation with a “resign or be dismissed” ultimatum would allow the employee to claim constructive dismissal.

If the poor performance issues have not been put to, and not accepted by, the employee there is no dispute and there can therefore be no “without prejudice” discussion. Even if the discussion is “without prejudice”, the employee will be able to rely on any discriminatory comment made during the discussion in any subsequent claim of discrimination.

The best and safest course of action is to complete the poor performance procedure and only then embark on any “without prejudice” discussion or, at the very least, follow the open procedures concurrently with any “without prejudice” discussions.
All meetings with staff should be recorded and you should never have a staff meeting alone – whether it is an interview, appraisal or disciplinary meeting. HR2all provides procedures to follow when conducting these types of meetings.


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