Can Performance Reviews Be Used Against Us In Litigation?

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There's a common view among companies that performance reviews provide legal protection against claims of unfair dismissal or accusations of discrimination to agencies like the EEOC (in the USA).

However, performance reviews can also work against a company.

Documented Good Performance Problematic in Law Suits

There's a tendency for managers to be less harsh and accurate when dealing with some underperforming employees, either out of sympathy, or just realizing that they have to continue to work with an employee over time, and don't want to evaluate them in a crushing negative way. So, it can be the case that an employee, who is underperforming, will be rated as average, or that the documentation is skewed to the positive side.

If that employee is dismissed, and then claims that dismissal was "unfair", illegal, or violated anti-discrimination laws, the company must prove that it had just cause, or had performance based reasons for the dismissal.

But, in this case, the performance reviews over several years might indicate that the employee was "OK", In essence the documentation was inaccurage, maybe out of good intentions, but the court will look at that documentation, which would certainly be presented to the court, see that the company in fact, communicated to the employee that his performance was adequate based on the company's OWN records, and then rule, in the absence of proof of poor performance, decide the dismissal was illegal.

This happens more than one would think.

Keep in mind that evaluation documentation must be as objective as possible, as accurate as possible, and that the COURTS will make the decisions on those criteria, not you. So, it can backfire.

To further explore the legal issues (and they are not as obvious as one would think), check out the expert articles on legal issues and employee performance.


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Bacal & Associates was founded in 1992 by consultant and book author, Robert Bacal. Robert's books on performance management and reviews have been published by McGraw-Hill. He is available for consultation, training and keynote speaking on performance and management at work.


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  • Performance management can be the lever for improved employee engagement.
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