Handling underperformance and difficult conversations

Key rules

• First step: Talk privately and early; never criticise someone in front of colleagues.
• Formal route: Formal action needs deliberate, sustained and provable underperformance, not mere lack of ability.
• Staff representatives: If the employee is a works council member or union delegate, a hearing is required before any sanction.
• Time limits: Disciplinary action has short time limits that start when the company learns of the facts.

Start early, privately and informally

Raise the problem as soon as you notice it, in a private one-to-one conversation. Do it in person, not in front of colleagues and not by message. In practice, this informal talk is the expected first step. Explain the issue, listen to the reasons, and agree together on how to improve.

Public criticism is badly received. It damages trust and dignity, and it can cause lasting resentment. Humiliating someone in front of others can also breach their right to dignity. In serious or repeated cases it can support a harassment claim (acoso laboral) or a claim by the employee that they were forced out.

Public praise is fine if it is sincere and specific. It works best when it credits the team. Some people dislike being singled out even for praise, so adapt to the person.

Keep a simple record

After each performance conversation, write a short factual note: the date, who attended, the points raised, the targets agreed and the follow-up. Then send the employee a brief email confirming what was agreed.

These notes have no special legal status. But if a case reaches a labour court, the judge can weigh them as evidence, especially if they are consistent, written at the time and acknowledged by the employee. The employer has to prove the facts behind a disciplinary dismissal, so objective data matters. Notes contain personal data, so keep them factual and limit who can see them.

The documents and template below help with this.

When the matter turns formal

Informal talks are enough for minor lapses. Think about the formal route when the underperformance is deliberate, sustained and provable. The best proof is an objective benchmark: the person's own past output, comparable colleagues or agreed targets.

Lack of ability is not the same thing. Dismissal for poor performance requires a continued and voluntary drop in performance. Struggling despite real effort does not meet that test.

No law requires an informal step first. But the formal route is risky without one, and a dismissal without proof is declared unfair or null.

Your collective agreement (convenio colectivo) decides which offences are minor, serious or very serious and which sanctions apply. It may also add steps, such as a prior hearing. Time limits apply to disciplinary action and start when the company learns of the facts, so do not leave a known problem sitting.

Hand off formal discipline

Any formal sanction must be notified in writing and state the facts, so involve HR or an employment lawyer before a formal warning. Do not write or deliver one yourself. Employment-law advice owns the formal steps. This page covers only the conversations before them.

Check for staff representatives

For ordinary performance talks, representatives have no formal role. In discipline they do. If the employee is a works council member, a staff delegate or a union delegate, a hearing is required before a sanction or dismissal. Skipping it makes a dismissal unfair. Many agreements also require telling representatives about serious sanctions. Check this before any formal step.

If a conversation goes badly

Raise it soon and in person. Acknowledge what went wrong and apologise for the manner, without necessarily withdrawing the substance. Invite the employee's side. Restate the shared goal and agree clear next steps.

Then rebuild rapport informally, for example over coffee or lunch, which matters in Spanish work culture. Follow through on what you promised and check in again after a week or two. Do not repair things in front of colleagues, and do not leave it unmentioned.

Choosing between options

Should you keep this informal or move to the formal disciplinary route?

• Keep it informal: The lapse is minor, or the problem comes from lack of ability rather than a deliberate choice. A private talk with agreed improvement steps is enough.

• Move to the formal route: The underperformance is deliberate, sustained and provable, ideally against an objective benchmark such as the employee's own past output, comparable colleagues or agreed targets. Hand it to HR or an employment lawyer first.

• Formal route with a hearing: The employee is a works council member, staff delegate or union delegate. You must hold a formal hearing process, and without it the dismissal is unfair.

Stay informal unless the underperformance is deliberate, sustained and provable.

Documents you need

• A short factual note of each performance conversation, with the date, who attended, the points raised, the targets agreed and the follow-up. You write it yourself soon after the talk.

• A brief confirming email to the employee after the conversation, restating what was agreed. It helps if the employee acknowledges it.

Checklist

• Raise the problem early, in a private one-to-one conversation, not in front of colleagues.

• Send a brief confirming email after the conversation.

• Apologise for the manner and invite the employee's side if a conversation went badly, then check in again after a week or two.

One-to-one meeting agenda and feedback script

Use this structure for a regular one-to-one, and use the feedback script when you need to raise something difficult. Hold both in person and in private. Spanish teams often speak more openly face to face than in writing, so avoid sending criticism by email or chat.

One-to-one agenda (30 to 45 minutes)

1. Personal check-in (5 minutes). Start with the person, not the tasks. Ask about their weekend, their family, their health or how they are feeling. This is expected, and it builds trust. Rushing straight into work can feel cold.

Try: "Hi [name], how was your weekend? How are you feeling at the moment?"

2. Their topics first (5 to 10 minutes). Ask what they want to talk about before you bring your own list.

Try: "Before we start with my list, what would you like to cover today?"

3. Progress and blockers (10 minutes). Go through what is done, what is stuck and what help they need.

Try: "How is [project] going? What is getting in your way?"

4. Priorities and deadlines (5 to 10 minutes). Confirm what matters most in the next weeks and the dates that go with it.

5. Feedback (5 to 10 minutes). Give both positive and critical points. Be specific, kind and private. Use the script below if the feedback is difficult.

6. Actions and close (5 minutes). Agree who does what and by when. Ask what support they need. Finish with a short recap, and send it in writing afterwards if useful.

Try: "So, you will [action] by [date], and I will [action] by [date]. Is that right? Is there anything else you need from me?"

Keep a regular slot, for example every two weeks on the same day. Stay flexible, and let the conversation run longer when the person needs it.

Feedback script for a difficult conversation

Ask for a private time and place in advance, and never criticise in front of colleagues. Say the main point clearly. Gentle hints are often missed.

1. Open with the person and the relationship. "[Name], I value working with you and I want us to be open with each other. There is something I would like to talk through."

2. State the specific behaviour or result, plainly. "On [date], [what happened, for example: the report reached the client two days late]." Describe facts, not character. Say "the report was late", not "you are careless".

3. Explain the impact. "The result was [impact on the client, the team or the deadline]."

4. Ask for their view, and listen. "How did you see it? Is there something I am missing?" Let them explain fully before you answer. People often react more to feeling disrespected than to the content itself, so keep your tone calm and respectful.

5. Agree what happens next. "What I need from now on is [clear expectation]. What do you need from me to make that possible?"

6. Set a follow-up date and close warmly. "Let's talk again on [date] to see how it is going. Thank you for being open with me."

What to avoid

• Criticism by email or message only, with no conversation.
• Sarcasm, jokes at their expense or a purely transactional tone.
• Softening so much that the point disappears.
• Raising the issue in front of others.

Style varies by company, sector and generation. Multinationals are often more structured than small local firms, so adjust the formality to your team.

Frequently asked questions

Can I praise a team member in public?

Yes, public praise is welcome in Spain if it is sincere and specific.

What happens if I humiliate someone in front of colleagues?

Humiliating an employee in front of others can breach their right to dignity. In serious or repeated cases it can support a workplace harassment (acoso laboral) or constructive-dismissal claim. Give criticism one to one and in person.

Does a staff representative change how I handle a discipline case?

Yes, if the employee is a works council member, a staff delegate or a union delegate, you must open a formal hearing process before dismissal. Without it the dismissal is unfair (improcedente).

How do I repair trust after a conversation I handled badly?

Raise it soon and in person, apologise for the manner without necessarily retracting the substance, and invite the employee's side. Then agree next steps and check in again after a week or two. Do not do this in front of colleagues.

Do my written notes of a performance talk count in court?

Yes, they can serve as evidence, but a judge weighs them freely. They help most when they are factual, written at the time and acknowledged by the employee. Keep them factual and limit who can see them, because they hold personal data.