(Extract from Appeal, 15 May 2012)

At paragraph 7.6 (of its judgment of 04-04 2012) the Tribunal found that the capability policy agreed with the unions (Agreed Statement E1a2 at page 295-296), allowed the use of improvement plans at the informal stage. The Tribunal stated, ‘This set out that there may be occasions where performance issues have to be addressed outside the appraisal process. The policy suggested that informal discussions about the employee’s performance should be held first of all. The process did not specifically say that improvement plans could be used as part of the informal process, but neither did it prohibit it. It stated that only when the manager determined that an individual had not responded to informal feedback and performance had fallen to an unsatisfactory level would certain further steps be taken. These further steps were that a manager may require an individual to complete a ‘program to achieve improvement’.

The Tribunal’s finding that the agreement could be interpreted in this manner by the Respondent is unsound. It relies on conflating two distinct paragraphs. Here is the relevant section of the agreement.

Agreed Statement E1a2 Issues of Capability

1 Introduction

The appraisal process is concerned with improving the performance of all staff. However, there may be occasions at the time of the appraisal when a manager identifies a level of performance which is unsatisfactory. There may be occasions when at other times a manager identifies a rapid and significant reduction in the level of performance. In these circumstances, it is important that specific action, outside the appraisal, is taken to help the member of staff improve performance.

2 Informal discussion

A primary objective is to ensure that staff who show signs of poor performance are given the opportunity and encouragement to improve. In these circumstances managers will discuss aspects of performance with a member of staff on an informal basis. Only when the manager determines that an individual has not responded to informal feedback and performance has fallen to an unsatisfactory level will the steps outlined below be implemented.

3 A programme to achieve improvement

Where a manager concludes that a member of staff’s performance is unsatisfactory, the manager may require the individual to complete a programme to achieve improvement subject to following the steps outlined below:

a) If a manager identifies that a member of staff’s performance is unsatisfactory and appraisal discussions and/or informal discussions have failed to result in improvement, the manager will meet with the member of staff to identify the reasons for the unsatisfactory performance and explain clearly the improvements that are required. Subject to the discussion, the outcome of the meeting could be a programme to achieve improvement; this would nominally be for a period up to six months.’

Paragraph 2 clearly says that only when the informal process has failed can the further steps, described at paragraph 3, be taken. These may include the implementation of a plan to achieve improvement.  In any case including what (the Tribunal claims) is not expressly excluded in paragraph 2 is not enough.  Paragraph 3 also says such a plan may only be implemented after the informal process has failed. To satisfy the Tribunal’s conclusion it is also necessary to exclude what is expressly included in this paragraph. The Claimant’s view is that such ‘flexibility’ of interpretation, ignoring context, obliterated the distinction between the informal and formal stages rendering the agreement meaningless. It created a precedent for re-interviewing senior journalists at the whim of management.

At paragraph 12 of his witness statement, manager, Andrew Thorman says, ‘As part of my investigation, I reviewed the informal work plan in question. Although, I felt that the issuing of a work plan is indicative of a formal process, I agreed with the reasoning, which was to provide clarity to Devan and agree objectives.’

It is a ground of appeal that finding such an interpretation acceptable in the manner the Tribunal does is perverse and biased. It is also biased and perverse in that it sanctions a flawed capability process in breach of the agreement.