You are:

PDS performance level grievances 2008

DWP/BB/024/08

Consolidating changes 2008

The abolition of moderating meetings, redefinition of distribution levels (as a guide not a requirement) and introduction of descriptions of performance levels in 2007, have introduced requirements in the performance and development system (PDS) for performance level decisions which must be consolidated in 2008. This circular provides guidance for branches when members are dissatisfied with their performance level decision and want to claim redress by using the DWP grievance procedures. (PDS policy 7/procedures 7.23)

DWP has agreed that transparency of decision making is essential to safeguard against bias (DWP newsbrief of 24 January 2008.) PDS decisions in 2008 must be transparent, justified and accountable.

Awarding performance levels

DWP requirements for awarding a performance level are listed in PDS policy paras 15-17 and the PDS procedures under paragraph 6.11. These procedures specify that managers must:

  • Consider what the employee has delivered in their objectives compared to others using the descriptions of performance levels as a guide for the whole of the reporting year
  • Consider whether the employee has demonstrated the competency to the level for their grade
  • Consider the employee’s evidence in the competencies compared to others using the descriptions of performance levels as a guide
  • Give equal weight to competencies and objectives (how employees achieve is as important as what they achieve)
  • Consider the employee’s performance against the agreed descriptions of performance levels and standards
  • Remember that all employees should have the ability within their post to achieve a top/higher box marking.
  • Award performance levels based on fact not opinion with each decision justified by evidence of performance in the performance plan against descriptors of performance levels

Evidence and justification

The revised relative assessment process for 2007 is intended to be more objective with the distribution levels being used as a guide not a requirement:

  • Line managers are not required to meet the guided distribution but are required to justify variance to the guided distribution (procedures para 6.12)
  • Each performance level decision must be justified on the basis of the employee’s achievement of objectives and competencies relative to the descriptions of performance levels set for employees of the same grade/band. The countersigning manager should vary the distribution levels, which are a guide not a requirement, when not to do so would result in an unreasonable decision not justified by the evidence of the employee’s performance relative to the description of performance levels. (procedures para 6.15)
  • No one will be placed on a performance level simply to meet the distribution ranges where there is clear evidence to justify not meeting the guide. (procedures para 6.16)

Decision making standards

The DWP standards for decision making are published in the HR decision makers guide. The decision makers guide now provides the clarity needed that certain basic principles apply when making decisions. These are listed under paragraph 2.2. Managers are expected to make decisions that:

  • comply with policy
  • are procedurally correct
  • take account of the employee’s circumstances
  • are legal
  • satisfy the principles of natural justice
  • are reasonable and fair (this does not mean always giving people what they want)
  • are your responsibility
  • can be clearly explained and justified

A glossary of HR terms is provided to help managers understand the terms used in decision making. Decision making criteria are provided for managers as decision makers (para 4) and appeal managers when reviewing decisions (para 5).

Performance level issues

Managers are required to “provide employees with meaningful feedback on why they have been awarded their performance level” (procedures para 6.19). Grievances about performance level decisions should be decided by testing the disputed decision against the standards in the decision makers guide together with the requirements of the PDS policy and procedures which may include considering:

  • Are the descriptions of performance levels appropriate for the job and grade/payband?
  • Has the performance level been awarded based on fact not opinion with each decision justified by evidence of performance in the Performance Plan against descriptions of performance levels (procedures para 6.11)?
  • Has the performance level been marked down because the team has not met its targets (para 6.7)?
  • Were the descriptions of performance level communicated to employees as required (para 6.3)?
  • Have the distribution levels been used as a requirement not a guide resulting in a decision not justified by the employee’s evidence of performance together with the descriptions of performance levels?
  • Has evidence of individual performance been properly considered against the descriptions of performance levels?
  • Is new evidence available which needs to be considered?
  • It is not acceptable to simply tell employee’s that their “position is relative to their peers.” This merely describes a comparison process but does not provide the “meaningful feedback” required under PDS procedures (para 6.19) and the proper explanation required under the decision makers guide and PDS policy (para 7).

Procedural correctness issues

Procedural correctness is defined in the DWP decision makers guide glossary. Managers are expected to follow procedures correctly when making any decision.

When there have been procedural shortcomings the key issue to be normally considered is the effect of these on natural justice and the extent, if any, they disadvantaged the employee. A key question would be, do the facts of the case, on the balance of probability indicate that the employee has been disadvantaged?

However, where the evidence shows that a manager has regularly and deliberately not complied with procedural correctness it may be appropriate to overturn the resulting decision for that reason alone to safeguard the integrity of decision making standards.

Objectives and performance levels

PCS guidance on work objectives is published in circular DWP/BB/011/08. Problems with work objectives need to be challenged when they first arise as such issues may not be open to redress when a performance level decision is being made or disputed. A previously unchallenged failure to set work objectives may not have an impact on a performance level decision when the objectives used are consistent with achievability and reflect reasonable expectations of employee performance.

A grievance about a performance level decision should focus on the evidence of the employee’s performance matching the descriptors for the appropriate performance level rather than a failure to set objectives.

Objectives may be effectively challenged at the start, or during, the PDS year but only rarely at the end.

Your statutory rights

The statutory right to be accompanied by a trade union representative applies at both the grievance meeting (grievance procedures para 3.2) and the appeal meeting (para 5.2). At this point the manager becomes accountable to both the employee and their trade union representative under the terms of the Employment Relations Act 1999 which require, as amended, in Section 102B, that:

The employer must permit the trade union representative to:

a) address the hearing in order to do any or all of the following –

  • put the worker’s case
  • sum up the case
  • respond on the worker’s behalf to any view expressed at the hearing

b) confer with the worker during the hearing

Failure to comply with the statutory rights under section 102B may be the subject of a complaint to an employment tribunal under section 11 of the act. Where a tribunal finds that a complaint under this section is well founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks pay.

Whilst a representative has no right to answer questions on behalf of the of the worker, the statutory rights listed above provide a firm foundation for effective representation.

Law at work

PCS has provided branch secretaries with a copy of the Law At Work 2007 published by the labour research department. Chapter 6 provides guidance on the legal basis for discrimination claims. Alleged discrimination should be raised in any grievance when there is reason to do so. Cases which appear viable for an employment tribunal (ET) claim should be submitted for legal advice before a claim is sent to an ET when the time limit allows.

Inequality requires evidence

PCS has received legal advice from Thompsons solicitors on the PDS statistics published by DWP. This advice states:

“I note the headline results show that ethnic minority staff, disabled staff and part time staff are less likely to receive a top or higher performance level than majority staff. Similarly, female staff are more likely to receive a top or higher performance level than male staff.

In any individual discrimination case against the DWP, those statistics would provide some limited assistance. However, hard evidence would still be required that the individual concerned had received a lower box marking as a result of either direct or indirect discrimination, on the facts of their particular case. In other words, without more, I could not recommend that a claim be taken simply on the basis of the headline figures.”

Evidence for improvement

Branches should refer appeal decisions which have been wrongly decided in clear disregard of DWP policy and procedures to group office. Evidence of problems with the operation of policy and procedures is needed to support the PCS case for improvements.

Advice for members and branches

Advice for members and branches published on the PCS website includes:

Further PCS guidance on PDS procedures will be published first on the PCS DWP website.