Dismissal on Grounds of Poor Performance
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This section gives guidance to employers faced with an employee whose performance falls below a satisfactory level to the point that dismissal must be considered. In employment terms this is called dismissal on grounds of capability. This refers to the situation when the employee is unable (rather than as in the case of conduct unwilling) to perform their duties satisfactorily. Example include ill health (dealt with separately and indexed opposite) and a genuine lack of ability to acquire satisfactory skills to do the job.
It is our experience in the vast majority of employers that performance issues are not properly addressed. One often finds that a poorly performing individual has been long-recognised but no action taken, indeed often performance-appraisal records are blatantly misleading.
It is extremely important that careful records are kept of any actions and decisions taken.
1. Newly employed staff
For the first 12 months employees are not protected by unfair dismissal legislation (but see discrimination section for exceptions). Newly employed staff should be reviewed over first six months of their employment to determine if they are suitable. We suggest as a minimum an informal review after two months and a formal review after five months.
Its our experience that if a new employee raises doubts about their performance in the first few months of employment then the employer should seriously consider terminating the contract of employment. Naturally allowances should be made for inexperience and it may be the immediate supervisor is not doing their job properly. In those circumstances it is often worth moving the new employee to a parallel role under a different supervisor. But we strongly advise that these matters are considered quickly and final decision taken. It is our experience that an under-performing new employee will rarely prove satisfactory in the long term.
If a decision is taken to terminate the contract in these circumstances it is critical that written record is available which demonstrates the reasons for such decision. Bear in mind discrimination employment protection applies from the first day of employment. Where an employee falls into a special category (i.e. race, disability, pregnant, young children, sexual orientation) seek professional advice before taking any decision.
2. Longer-serving employees
Where an individual has been employed for over 12 months they are protected from unfair dismissal. In that event employers need to establish why the employee is unable to do the job. Ensure that retraining is carried out and the employee has full support. This is not a disciplinary matter. But the basic steps in the disciplinary process warning/ final warning should be adapted to ensure the employee is given fair opportunity to improve their performance. See disciplinary procedure example . Only as a last resort should the employee be dismissed.
Employer's Actions
1. As objectively as possible, define the nature of the unsatisfactory performance.
2. Let the employee know in writing what it is alleged they have done wrong and the reasons why it was unacceptable.
3. Hold a meeting to give the employee the opportunity to hear the nature of the complaint. The meeting should be held at a convenient time for both parties.
4. At the meeting the employer should explain the complaint and go through the evidence that has been gathered. The employee should be allowed to challenge the issue if they desire, ask questions and call witnesses.
5. If necessary adjourn the meeting and consider any points the employee has made. Indicate the improvement required, preferably with reference to objective criteria, clearly indicate the consequences of failure to meet the criteria.
6. Agree with the employee any assistance they need in order to achieve the improvement (e.g. additional training, support etc).
7. Set down the nature of monitoring and review together with the timescales. Set measurable targets for achievement
8. If performance continues to fall below satisfactory consider what other options may be available short of dismissal, such as redeployment, demotion, part assignment of responsibilities.
9. Assess continued failure in a manner consistent with the disciplinary code of practice. Give the opportunity to appeal if dismissal or other options are decided upon.
Employers need to be mindful of discrimination legislation whenever capability is an issue. Bear in mind if discrimination is proven protection from unfair dismissal occurs from the first day of employment and the financial penalties from tribunals can be very large. If in doubt contact us or seek other professional advice.