A productive workplace is one where all team members pull their weight together, and where management communicates their expectations clearly. When even one member of the team doesn’t pull their weight, the productivity, morale and culture of a workplace can suffer. It’s not just their own work that’s impacted, but everyone else’s too.
Before reprimanding or firing an employee, performance management should always be the first step. This lets you identify any root causes of the issue and correct them, whether that’s through additional training, time off, or an adjustment to the workplace environment.
If the employee’s performance doesn’t improve, however, it may be necessary to undertake disciplinary proceedings. In the worst case, this can result in dismissal and a termination of their contract.
When an employee’s poor performance leads to their employment being ended, it is necessary that you – as their employer – act sensitively, and within the bounds of the law. Unfair dismissal is one of the leading causes of employment tribunal proceedings, so it’s important that you get it right.
With this blog post, we hope to guide you through how to dismiss an employee for poor performance in the UK.
What causes poor performance in the workplace?
Poor performance in the workplace can have a variety of different causes, both under your control as an employer, and out of it. Those causes might include:
- Employee physical or mental health problems;
- A lack of training;
- Poor leadership;
- Personal issues;
- Unmanageable workloads; and
- The overall workplace culture.
Most of these issues can be resolved through effective management, additional support, regular dialogue, and a measurable action plan, but the path towards improvement requires effort from not only the employer but the employee too.
In a scenario where no improvement can be identified, and your employee is unwilling to move their performance in a positive direction, terminating their contract might be your best option.
How to dismiss an employee for poor performance
Dismissing an employee for poor performance should be done in a way that respects both their statutory employment rights and the specific rights laid out in their contract. By conducting the process fairly and transparently, you not only show respect to the individual but also significantly reduce the risk of potential unfair dismissal claims that may lead to legal complications down the road.
To guide you through the process, the Advisory, Conciliation, and Arbitration Service (Acas) – an independent public body sponsored by the government – provides a step-by-step framework for you to follow. Many organisations choose to incorporate the steps into their policy documents, drafted with the help of employment law specialists.
For your convenience, we’ve outlined the key steps according to Acas below:
Step one: Establish clear and well-defined rules
Admittedly, this step should be taken long before any performance problems occur, but it’s a necessary one to leave your employees in no doubt as to what is expected of them and the potential consequences should they fail to live up to those expectations. Establishing well-defined rules is best done within your policy documents, decided by all stakeholders within your business to create an environment of shared responsibility and printed in black and white.
Once published, it’s important that you hold all employees – whether directors or entry-level assistants – accountable to the same disciplinary standards. Failure to do so can undermine trust within your organisation, lead to accusations of favouritism, and damage workplace cohesion. Moreover, failing to be consistent can open the door to unfair dismissal and discrimination claims.
Step two: Investigate the matter thoroughly
While poor performance is often identified through discussion, there are situations where a more in-depth investigation might be necessary to establish whether matters beyond the employee’s control have impacted their performance. Acas underscores the importance of conducting these investigations with diligence and efficiency.
It is recommended that the investigation is undertaken by an impartial, third-party whose judgement is not clouded by loyalty to the organisation or to the employee themselves. Furthermore, any investigatory meetings with the employee should not result in disciplinary action itself. Instead, they should be fact-gathering exercises, equipping you, the employer, with all of the information necessary to proceed with measures such as dismissal.
Step three: Notify the employee
Once a decision is made to proceed with disciplinary action, it is essential to inform the employee promptly and in writing. The notification should contain sufficient details about the poor performance and the disciplinary meeting at which it will be discussed. Doing so in a timely fashion enables the employee to prepare their response and choose whether to be accompanied by a colleague, trade union representative, or an official employed by the trade union.
Step four: Hold the disciplinary meeting
A disciplinary meeting is an opportunity for you to explain your complaint against the employee – that their performance has not been of a sufficient quality – and present evidence that supports your claim. The employee can then respond to the allegations, ask questions, and provide their side of the story. This open dialogue ensures that both parties have an opportunity to voice their concerns and contribute to a fair resolution.
Your employee might not, for example, be meeting their sales targets for the past three months. During the meeting, you might present that fact to them, illustrated by their sales figures. In response, your employee might suggest that they weren’t given a particular piece of training – which you might refute by presenting an email confirming their attendance at that particular session. In this scenario, the employee seems unwilling to accept responsibility for their poor performance.
Step five: Decide on and take appropriate action
Having held the disciplinary meeting, you can now make an informed decision on whether further action is warranted. This decision should be communicated to the employee in writing without unreasonable delay, and it should outline the specific actions the employer intends to take to address the issue. Typically, for first-time misconduct or unsatisfactory performance, employers will issue a written warning. Subsequent misconduct or failure to improve performance within a specified period may result in a final written warning. In cases of severe or harmful misconduct, an immediate move to a final written warning or dismissal may be necessary.
Step six: Dismissal
If the employee shows no improvement in their performance or displays an unwillingness to correct sub-standard conduct, you might decide to dismiss the employee. That fact should be communicated to the employee in writing alongside details such as the reasons for dismissal, the termination date of the employment contract, the applicable notice period, and the employee’s right to appeal the decision. It’s important to note that dismissal should only occur after a fair disciplinary process has been followed.
Step seven: The right to appeal
An employee who has been dismissed has the right to appeal against your decision and should be notified of that fact in writing. The appeal process should be conducted without unreasonable delay and ideally at a time and place agreed upon in advance. It’s essential to maintain impartiality throughout the appeal process, ideally assigning a manager who has not previously been involved in the case to handle the appeal.
Workers have a statutory right to be accompanied at appeal hearings, ensuring that they can present their case effectively. Once the appeal hearing is concluded, the outcome should be communicated to the employee in writing without undue delay, providing closure to the disciplinary process.
What is the difference between unfair and wrongful dismissal?
Unfair dismissal is when an employer dismisses an employee without a fair reason for doing so, or does so without following proper processes. Wrongful dismissal relates to a situation where an employee’s dismissal breaches their contract, such as the employer failing to give the required notice period.
A claim of unfair dismissal might be made against an employer if they failed to give the employee adequate time to improve their poor performance, a claim that can usually only be made by employees who have been employed by that employer for two or more years. Employees who have been employed for a continuous period shorter than that will likely be unable to make a claim of unfair dismissal, unless it is deemed automatically unfair (e.g. if they were dismissed for a reason prohibited by law, such as pregnancy or anything relating to maternity).
The question of how to dismiss an employee for poor performance is a sensitive one. The matter should be handled in-line with UK employment law, ensuring that you are not the subject of an unfair dismissal claim, and following extensive employee performance management.
If you would like assistance with the performance of your employees, don’t hesitate to reach out to us today.