Performance-related dismissals: five key points

Performance-related dismissals should never seem “out of the blue” to an employee. Time and planning by employers are the secret to a fair and legally watertight approach, explains David Malamatenios.

Dismissing an employee for poor performance has its own particular challenges and relies on good communication with the employee and thorough planning to be successful. Patience is also essential as performance-related dismissals, if carried out fairly, always take time (which many senior managers do not seem to have).

The issue has taken on an increased importance with the abolition of the default retirement age and an ageing workforce where performance problems will become increasingly common. Significant improvements will be required in the management of performance and capability issues if unfair dismissal, age and disability discrimination claims are to be avoided.

Performance management

The secret to managing a fair and transparent performance dismissal is timing and planning. A performance dismissal should only take place after some months of performance management, including training and formal written warnings.

It should not, as is often the case in those poorly managed performance dismissals that take up so much employment tribunal time, take place unexpectedly and “out of the blue” because the employee’s manager has lost patience and finds the situation untenable without the employee even being aware there was an issue.

Most employers have performance management procedures that mirror the provisions of the Acas code of practice on performance management. Typically those procedures provide for a system of warnings, training and performance reviews that can take some time to follow through (usually up to six months).

Of course, in the case of an employee with less than one year’s continuous employment such thorough procedures do not necessarily have to be followed as the risk of a claim is far lower unless the employee can rely on a protected characteristic under the Equality Act.

It is important to consider the Equality Act in this scenario. Is there a potential discrimination angle? The obvious example would be an employee who previously raised allegations of discrimination.

However, it is important to be sensitive to other potential risks, such as the only female employee in an otherwise all-male team. Of course it is not always possible to spot a discrimination risk. Take discrimination on the basis of disability. A disability is not always apparent, declared or known to the employer, yet this may provide no protection against a claim of disability discrimination.

Therefore the best option is to follow a full performance management process in nearly all circumstances, regardless of an employee’s length of service.

So what is the best way to effect a fair and transparent dismissal on the basis of performance? These are the essential (but often overlooked) points to consider.

  1. Firstly, consider whether or not there are any conduct issues that can be relied on to effect a safer and quicker dismissal procedure. It is not at all uncommon to find conduct issues bundled together with poor performance. For example, persistent lateness and rudeness by an employee. These issues should be identified and dealt with separately. A dismissal on the basis of conduct can progress more speedily than one based on performance even where warnings are given before the final dismissal.
  2. Performance targets need to be set for the underperforming employee at the performance review meetings. Targets need to be measurable and achievable with guidance and support provided.
  3. The periods set for the review of the employee’s performance need not be too long – just long enough to be reasonable and for the employee to achieve the objective. I would suggest a minimum of four weeks and an absolute maximum of 12 weeks (how long will of course vary and depend on individual circumstances).
  4. At the end of each performance review period, meetings should be held to review the employee’s performance. If performance has not improved then a warning should be issued and a fresh performance review period entered into. If at the end of this second performance review period there is still no improvement, a final written warning may be issued. If there is still no improvement after that then the employer may move to consider dismissal at a final performance review meeting. Dismissal will be with notice as poor performance is not gross misconduct.
  5. Evidence of the employee’s poor performance (such as examples of inadequate work, or complaints by customers or colleagues) should be retained and shared with the employee at each stage of the process.

Communication and planning

This is not the whole picture though. I said that good planning and effective communication are important. This is where so many employers fall down.

An example of good communication and planning is to use appraisal procedures to ensure an employee is aware of any performance issues.

You cannot expect an employee to react well if they are suddenly placed on a performance management procedure and the issue of their performance had not been raised in a previous appraisal. The employee will then regard the whole process as contrived and unfair. The individual will not “buy in” to the process and their performance will not improve (after all, improvement is the aim of the process and not dismissal). An appraisal should be honest and candid, with expectations properly managed.

Another area where coordination, communication and planning comes into its own is where an employee under a performance management procedure becomes ill with stress as a consequence (or he or she feigns it to disrupt the process).

It is worth remembering that this stress is not the cause of the poor performance and, therefore, reasonable adjustments to the employee’s role do not usually have to be considered. The employee’s absence makes it far more difficult to progress a performance management process.

The best way to deal with this situation is to instruct a medical specialist at an early stage. A specialist in the relevant field is always to be preferred over occupational health in my view. Then a judgment can be made as to whether or not the illness is genuine. If it is genuine and becomes long term, then the focus will have to shift to a dismissal on the basis of ill health. That, however, is another story.

About David Malamatenios

David Malamatenios is a partner at Colman Coyle Solicitors.
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