Performance Appraisal

Legal and Ethical Issues in Performance Appraisal

It is not practicable to provide an exhaustive analysis of the legal implications of performance appraisal as these often vary from one state or national jurisdiction to the next. Nevertheless there are principles of equity and fairness that should be upheld in any good employee evaluation process.

The following is not specific legal advice and should not be treated as such.

1. Performance appraisals should not be used in a merely punitive or retaliatory fashion. It is grossly unprofessional for a manager or supervisor to use the appraisal process to 'get even' with an employee who has displeased or upset them in some way.

2. Appraisals should not be used to discriminate against employees on the basis of race, religion, age, gender, disability, marital status, pregnancy, or sexual preference.

3. Performance appraisal results should be fair, accurate and supported by evidence and examples. For instance, if an employee has poor interpersonal skills and is harming morale and group performance, the supervisor might keep a log of incidents. Co-workers may be interviewed and their views and reactions recorded. The nature and effects of the employee's behavior should be documented.

4. An employee should have the opportunity to comment on their appraisal result, to express their agreement or otherwise, and to appeal the result or at least request a review by upline supervisors.

5. Appraisals should be balanced, recording information on both the good and the bad aspects of an employee's performance (as far as possible).

6. Appraisals results should not be used as the sole basis for promotion, remuneration or termination decisions. A broad range of information should be considered, in which the employee's appraisal results may be significant but not necessarily conclusive.

7. Employees who receive a poor performance appraisal result should be given a reasonable chance to improve. Generally speaking, it is a bad idea to dismiss, demote of otherwise penalize an employee because of a single adverse appraisal result (depending of course on the nature and seriousness of the conduct that underlies the poor result).

8. Provide timely feedback, especially to marginal or poor performers. It is not fair to offer zero feedback to a poor performer for twelve months and then present them with a bad appraisal. Be willing, especially with employees who are having trouble, to offer more frequent feedback and guidance. Tell them if something is wrong and give them a chance to correct the problem in a timely manner.

9. Retain records. If an employee believes they have been dealt with unfairly, they may have rights to instigate legal action years later. In the case of poor performers, or persons dismissed or demoted, or those who resign or leave in less than happy circumstances, we suggest that their appraisal records, together with critical incident logs and other relevant documents, be archived indefinitely. Check with local legal specialists as to required periods of record retention and time limits on the rights of potential litigants, as these vary from one jurisdiction to the next.

10. If an appraisal result is poor (or in any way likely to be controversial or provocative), ask an objective third party for their views on whether the appraisal result seems fair and reasonable. Be prepared to modify your position if the second opinion is not supportive of the result.

11. Appraisals should avoid inflammatory and emotive language. As far as possible, aim for a detached and dispassionate style. Ensure that criticisms relate to actual job requirements and are not based on mere personal or other irrelevant issues that have little or no connection with actual job requirements.

12. Managers and supervisors required to conduct staff appraisals should be trained in appraisal principles and techniques. Conducting performance appraisals is one of the most demanding of all supervisory activities. It is a sensitive and sometimes controversial task which, if mishandled, can cause serious damage to employee relations and morale.

13. Appraisal results should be treated as private and confidential information. Record storage should be secure and controlled. Only people with an approved need to know should have access to an employee's performance appraisal information.

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