Employment Law: The process of ‘firing’ someone for poor performance

An underperforming employee can understandably affect productivity but if also affects the motivation and moral of others in the team. It is problem that many employers face and handled incorrectly can be costly and time consuming.

It is reasonable to address the poor performance initially on an informal basis. But where this proves unsuccessful, it will depend on the employee’s length of service and some other relevant factors such as the reason for underperforming and whether this links to a “protected characteristic”, as to what approach you then follow.

For those employees under two years’ service that are not citing a protected characteristic for their underperformance (for example dyslexia or mental health issues) then you may be able to address the matter quite quickly and terminate the contract of the employee without the risk of an employment tribunal claim.

Those employees with over two years’ service, have the right to claim ordinary unfair dismissal and therefore you will need to follow formal capability procedure and issue warnings before dismissal takes effect.

If the employee has a medical condition, you may also need to obtain a medical report and make reasonable adjustments before taking any formal action.

Capability warnings are issued in a similar way to conduct (disciplinary) warnings where employees should be invited to a meeting to discuss the issues, given a written outcome and right of appeal. The process is repeated until you reach the dismissal stage and employers should be seen to actively support the employee in achieving set targets and objectives.

It is important to seek advice on each individual case to avoid unfair dismissal and discrimination claims. Sometimes the law can be restrictive and therefore a Settlement Agreement may be an option to resolve the matter effectively and quicky in order to prevent any claims.

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