Performance appraisals should drive growth, motivation and development – not open the door to legal claims. But as hybrid working becomes standard, many employers are finding their traditional appraisal processes increasingly vulnerable under legal scrutiny.

From a legal perspective, appraisals are more than just feedback – they’re evidence. If a dismissal or discrimination claim is brought, tribunals will dig into how performance was assessed, what standards were applied, and whether bias played a part.

What can go wrong?

• Subjective ratings (“poor attitude”, “not a team player”) with no clear benchmarks can leave employers vulnerable to discrimination claims. If these ratings are then used to scaffold a formal performance management process, then there is a risk of undermining the fairness of the PIP process. 
• A lack of documentation makes it significantly more difficult for employers to act on performance concerns. There’s no point grumbling about an employee’s performance behind the scenes if those ‘grumbles’ are not brought out into the open, documented, and tackled.
• Unconscious bias skewing the outcome. This can creep in in all sorts of ways. Whether it is an unconscious leaning towards those who ‘fit in’ more easily or the problem in hybrid teams, where proximity bias can favour those more physically present.

So how do you protect your organisation?

• Set clear, measurable criteria – no vague language.
• Train managers to recognise bias and assess remote and office-based staff equally. Consider ‘peer review’ of appraisal documentation to spot potential issues quickly.
• Keep detailed, contemporaneous notes – assume they may be read aloud in a tribunal.
• Calibrate across teams to ensure consistent scoring.
• Let employees respond to their reviews and document the outcome.
• Follow through on development plans.

Tip for HR: Treat appraisals like formal evidence – because that’s exactly what they’ll become if challenged.

WBW can help

For further information, please contact Kerry Curd in the employment team on 01626 202406 or email KerryCurd@wbw.co.uk.

WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.