An extract from my new book - "The S M E Human Resources/Industrial Relations Toolkit" in it's 21st Edition Released in CD/DVD Format September 2009.

OVERVIEW: LEGALLY DEFENSIBLE PERFORMANCE APPRAISALS

PERFORMANCE APPRAISAL AND COMPLIANCE


Performance documentation. In general, any personnel action such as discipline or dismissal may be defended from challenge if it was taken pursuant to a legitimate business justification. Poor performance is one such business justification. In any suit that challenges an adverse personnel action, the first piece of evidence that a Applicant’s attorney will ask for is the employee's past performance appraisals. If the case goes to CCMA/CDR, those appraisals will be enlarged and put on display for a Commissioner to scrutinize. They will also take them back committee to be reviewed in detail. It is therefore essential that performance appraisal be done fairly and consistently.

Nondiscriminatory. Unions and Legislation prohibiting employment discrimination are the main sources of legal concern for performance appraisal. Employees may allege that a promotion denial, layoff, dismissal or compensation action was illegally influenced by the employee's race, sex or age. Employers typically will turn to past performance appraisals to justify the action. If performance appraisals are not well documented or inconsistently applied, however, the employer's defense is weakened or destroyed.

LEGALLY DEFENSIBLE PERFORMANCE APPRAISALS

A legally defensible performance appraisal system should contain the following elements:

____ 1. be in writing

____ 2. contain specific procedures

____ 3. specify documentation to be used and in what manner documentation is to be gathered

____ 4. include specific instructions for supervisors

____ 5. provide training for supervisors in how to evaluate and administer the system

____ 6. use standardized forms for related groups of employees

____ 7. establish objective and/or measurable job criteria

____ 8. be thoroughly communicated to employees

____ 9. be given formally at least on an annual basis

____ 10. evaluate specific work behavior and not personal traits

____ 11. periodically review the system.