As a business owner there will likely come a time where you will have to let employees go. It could be to balance the books, to streamline your firm or, in unfortunate cases it could be down to poor performance.
If you require any assistance or guidance on any aspect of employment law, contact our friendly expert employment solicitors today.
And although thorough and proper recruitment and management may reduce this risk, it can’t completely eliminate the chance of an employee performing poorly.
But how do you best approach the subject? What are the do’s and don’ts and what risks could you be facing if not done correctly? What is the best way to go about it? This is how to dismiss an employee for poor performance.
Why and how?
Conduct / Misconduct
Matters relating to, but not limited to, persistent or serious negative behaviour e.g. persistent poor time keeping, deliberate negligence etc should be dealt with via a meaningful disciplinary procedure – following on from an early investigation process. This will ensure that a meaningful process is followed and will avoid any later claims of unfair dismissal.
Capability / Performance
Poor performance and / or capability is often related to ill-health conditions, including disability and / or mental health conditions. The employer will, on all occasions, need to carefully consider the support available to employees who are not adequately fulfilling their job roles and responsibilities. Where long term ill health is identified or a condition which is likely to affect a person’s ability either in the short term or long term, the discerning employer should always consider any reasonable adjustments as well as any more suitable alternative roles. The support of a GP or medical consultant is of course recommended, together with the obtaining of the requisite consent forms from the employee to obtain such information.
This will avoid any constructive dismissal or automatically unfair dismissal claims.
Poor performance not related to ill health will still require investigation and support. Capability differs to Misconduct as the act of not fulfilling a role is not deliberate, as opposed to the act of misconduct or gross misconduct.
Statutory illegality or breach of a statutory restriction
Whilst not commonly used, in the event you continue to employ someone who is no longer able to fulfil their duties, you will unintentionally be breaking the law e.g. where an employee no longer has the right to work in the UK or where a driver loses his licence. Whilst the employee may no longer be entitled to work it should be noted that a proper procedure should still be followed i.e. investigation, disciplinary etc.
Some other substantial reason for dismissal (‘SOSR’)
SOSR is a reason for dismissal which does not fit squarely into the other four categories e.g. expiry of a fixed term contract, a breach of trust and confidence, a break down in relationships with would cause a significant disruption or impact on the business.
It is important to bear in mind that for a SOSR dismissal there should be a substantive belief that the relationship could not have continued in order to prove the reasonableness of the dismissal. Therefore robust procedures should be followed.
Pre-Termination Negotiations
Section 111A of the Employment Rights Act now makes it possible to have “pre-termination negotiations” which are inadmissible in an employment tribunal claim for unfair dismissal. You can now have the conversation and it cannot be used against you. As always, there are limits to this procedure.
Pre-termination negotiations means any offer made, or discussions held, before the termination of employment with a view to it being terminated on terms agreed between the employer and the employee. But that is as far as it goes:
- it only covers claims of unfair dismissal. It does not, for example, cover claims of unlawful discrimination;
- it does not cover cases when allegation may be made that the dismissal was for a reason which, if upheld by a tribunal, would constitute automatic unfair dismissal;
- if something is said or done in the discussion which, in a tribunal’s opinion, was improper or connected with improper behaviour, the tribunal can admit evidence to the extent that it considers it just;
- evidence of pre-termination negotiations can still be referred to on any question as to costs or expenses.
ACAS Advice
As always, Acas has produced a Code of Practice which employers can view, and which should assist in avoiding improper behaviour which might include harassment, bullying and intimidation, assault or the threat of assault, victimisation, discrimination or putting undue pressure on the employee.
If you require any assistance or guidance on how to dismiss an employee for poor performance or any other aspect of employment law, contact our friendly team.