We get it – managing a team comes with its fair share of challenges. Sometimes, despite your best efforts, an employee may not be meeting the performance standards you’ve set. But can you just fire them? Don’t worry, because we’re here to tell you how you can dismiss an employee for poor performance, all while staying on the right side of UK employment law.
Understanding The Basics
Before diving into the nitty-gritty, let’s establish a solid foundation. In the UK, employment laws are in place to protect both employers and employees. When you are thinking about how you can dismiss an employee for poor performance, you must follow a fair and reasonable process to avoid legal repercussions.
If your employee has under two years consecutive service, then you can just say to them that it is not working out and pay them their notice. We would still recommend following the steps below to give them a chance to improve.
Before you just “go ahead”, please check their contract or your payroll system to make sure how much service they have – do not guess!
If they are over two years’ service you will definitely have to follow the steps below to show you have followed a fair process, because if they have over two years’ service, they can sue you for unfair dismissal (the fine is capped at one year’s pay).
1. Document, Document, Document
The key to a smooth dismissal process starts with thorough documentation. Keep detailed records of job descriptions, performance reviews, warnings, and any attempts e.g. training, made to help the employee improve. This documentation will serve as your safety net, providing evidence that your decision is based on genuine performance concerns rather than discrimination.
2. Discrimination and Protected Characteristics
If your employee has any of the 9 protected characteristics (age, sex, sexual orientation, gender reassignment, pregnancy and maternity, marriage and civil partnership, race, disability, religion) then you will need to put more effort in to documenting what you have done to help the employee improve. You need to make sure that they cannot turn around and say that you only dismissed them because they were suffering from e.g. depression. Your documentation will help show that this is not the case and avoid a tribunal.
3. Performance Improvement Plan (PIP)
Before hitting the panic button and showing an employee the door, consider implementing a Performance Improvement Plan (PIP). Although it sounds very formal, a PIP is a just a structured approach to help struggling employees get back on track. Clearly outline the performance expectations, set measurable goals, and provide support and resources (training) to help the employee meet these expectations.
4. Communicate Clearly
Open and honest communication is vital. Schedule regular feedback sessions with the employee, making sure they are aware of the performance issues and giving them an opportunity to voice their concerns. Make sure that they know what they are supposed to be doing, to what standard and in what timeframe. Use specific examples. Do not say “You are lazy” but rather “You were asked 3 times this morning to deal with the incoming post but you did not do so. Can you explain why?”. You should record these performance meetings on your phone, and let them do so as well. After the meeting, send an email confirming what has been agreed, or at least decided by you. Do not go into a rant. State, for example, “You agreed that you will open the post by 10am every day and distribute letters by 10.30am to the rest of the staff”. State what you want, not what you do not want.
5. The Company’s Disciplinary Procedure
If your employee is under two years’ continuous service, you will not need to follow a disciplinary procedure to dismiss them. It can just be a simple conversation saying that it is not working out because their performance is not at the standard you expect. However, that termination conversation will be a lot shorter and easier if you have documented the problems as above.
If they have been with you for over a year, working well, and there is then this blip, it would only be fair to do a disciplinary process, often called a capability process, to give them the chance to officially defend themselves and improve.
For staff over two years, you will need to adhere to your company’s disciplinary procedure as outlined in your handbook. This may involve providing several stages of the process, written warnings, conducting formal meetings, and allowing the employee to appeal decisions. Skipping these steps can leave you vulnerable to legal action. If you have no handbook, then you need to follow the ACAS guidelines on dismissal. Unless they commit gross misconduct, you are not going to be able to dismiss them immediately for poor performance. It will be at the end of several months of meetings.
6. Seek Professional Advice
When in doubt, seek legal advice. Employment law can be complex, and giving us a call to discuss the situation can provide you with the confidence that you are navigating the process correctly. It’s a small investment that can save you from costly legal battles down the line.
7. The Final Decision
If, despite your efforts, the employee fails to meet the required standards, and you’ve followed due process, it may be time for termination. Have the conversation in a private office, not in front of all their colleagues. Do it at the end of the day so that they can go straight home afterwards. Do not expect them to finish what they are working on or to work their notice period. Make sure that you provide a written notice of termination, confirming that they will be paid their notice and outstanding holiday entitlement, and will get their P45 in due course. If they are under two year’s service, do not give them the right of appeal. If they are over two years’ service, they have to have the right of appeal.
8. Settlement Agreements
If the employee has one or more protected characteristic, long service, or is just going to be difficult at each stage of the process, you might want to consider a settlement agreement with them. Please give us a call to discuss or visit the settlement agreement section of our website.
Conclusion
Working out how to dismiss an employee for poor performance is never an easy task, but it can be managed effectively by following a fair and transparent process. Remember, documentation, clear communication, adherence to procedures, and seeking professional advice are your allies in navigating the maze of UK employment law. Good luck, and may your workforce be ever thriving!
Feel free to contact us on 01491 598600 or email us on cw@gaphr.co.uk to find out more!
