David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

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“One Nueron Short of a Synapse?”

Annual staff appraisals can be a once a year opportunity for constructive two-way communication between staff and employers. It can be a unique occasion for employers to highlight concerns they may have about performance issues of individual employees at work. It is also one of the few occasions when employees themselves are given the forum to comment on their position and to voice any dissatisfaction they may be feeling. The opportunity then presents itself for both parties to agree a plan of action over the forthcoming six months to a year to address any issues which have been identified.

A useful exercise – right? Well, not always. The above analysis presupposes that all parties are taking a pragmatic attitude to the appraisal process. In actual fact managers often use the appraisal system as a one way means of communicating their own private frustrations with individual employees. Some of the more humorous comments taken from actual employee evaluations include the poignant “works well under constant supervision and cornered like a rat in a trap”; the incisive “his team would follow him anywhere but only out of morbid curiosity”; the scathing “he sets low personal standards then consistently fails to achieve them”; the caustic “this employee should go far – and the sooner he starts, the better”; and the truculent “this young lady has delusions of adequacy”.

Whilst these comments may be justified to a certain extent, there are occasions when managers resort to a more directly abusive tone. Various personnel departments have relayed comments made by managers including the misanthropic “I would not allow this employee to breed”; the slanderous “this employee is depriving a village somewhere of an idiot”; the asinine “when his IQ reaches 50 he should sell”; and the opprobrious “a prime candidate for natural deselection” are obvious examples. Finally, there are those occasions which convey a deeper animosity such as the psychotic “I would like to go hunting with him sometime”!

Constructive Dismissal

There is of course a serious point to all this. Comments like these, whilst amusing, undermine the appraisal process and in so doing may give rise to claims for constructive dismissal. Such comments may not be capable of objective justification and employees may be able to claim that they are being singled out and victimised by managers without reason. Even where such comments about an individual’s performance do have a semblance of justification, employers have a duty to act in a reasonable manner which is not calculated to undermine the relationship of trust and confidence between the employer and employee. Tribunals are unlikely to look sympathetically on such comments when determining whether or not employers have complied with this duty.

Data Protection

It is not safe to assume that private comments made by managers in staff appraisals for the benefit of the personnel department will remain confidential. The Data Protection Act 1998 extends individuals’ access to “data” to cover manual filing systems and this includes access to personnel files. The definition of personal data includes expressions of opinion, including both current and historically adverse comments on an employee’s performance which were originally included on a confidential basis in the personal file. Such matters will become available in due course to employees and clearly may be of great evidential value to employees who wish to bring constructive dismissal claims against their employers.


Employers should maximise the potential benefits of the appraisal process by laying down more structured guidelines for managers to follow. Guidelines should also be laid down as to the nature of the material that is to be included on employees’ personnel files in the future. In the meantime employers are advised to clear out personnel files periodically to remove any information which is no longer relevant or useful but the disclosure of which could be damaging to employer / employee relations.

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