If you have been dismissed for poor performance/under performing at work, you may have a claim for Unfair Dismissal in the Employment Tribunal. Please read on to find out more.
Your employer will expect you to perform your role to a minimum standard. It is therefore possible for your employer to take action and, ultimately, dismiss you if they consider you are not reaching that standard and are incapable of doing your job. For example, this may include if they consider you lack productivity, you do not meet targets or deadlines, or you fail to connect with customers or colleagues.
I Have Been Dismissed For Poor Performance / Underperforming – What Should I Do?
If you have been dismissed for poor performance/underperforming, and you believe the reason for your dismissal was unfair and/or your employer did not follow a fair procedure (please see below), it is very important you appeal the decision.
If you do not appeal, any decision will be part of your personnel record and these decisions cannot be challenged internally months after your dismissal. Think of your appeal as your last chance to put forward your representations to try and change your employer’s decision. Also, if you are dismissed and your claim is determined by an Employment Tribunal (as below), an Employment Tribunal Judge will expect you to have exhausted all internal appeals and can reduce your compensation if you have failed to do so.
For more information about how to appeal your dismissal, please see here – https://lincslaw.co.uk/blog/what-is-unfair-dismissal-and-should-you-appeal-against-your-dismissal/
Can You Claim Unfair Dismissal If You Have Been Sacked For Underperforming?
The short answer is, potentially yes!
Generally, you need at least two years’ service with your employer to bring a claim of Unfair Dismissal at the Employment Tribunal. There are, however, limited exceptions to this rule. For more information about this, please see our blog here – https://lincslaw.co.uk/blog/unfair-dismissal-less-than-two-years-service/
Also, please note, whilst this blog focuses on a claim of Unfair Dismissal, if you have been dismissed by your employer for under performing, there may be other claims in the Employment Tribunal available to you. Some of these claims do not have a required minimum period of service. For example, if you consider that your poor performance is linked to your disability, and your employer has failed to make reasonable adjustments to your working practices, you may have a claim under the Equality Act 2010. For more information about this, please see here – https://lincslaw.co.uk/blog/what-reasonable-adjustments-does-my-employer-have-to-make/
What Is A Claim of Unfair Dismissal?
A claim of Unfair Dismissal has specific legal tests which the Employment Tribunal must apply in deciding whether to uphold your claim. In a claim of Unfair Dismissal, the burden would be on your employer to prove to the Employment Tribunal that:
- They had a potentially fair reason to dismiss you; and
- In the circumstances, it was reasonable to dismiss you.
Each of the points above are addressed below.
Did Your Employer Have a Potentially Fair Reason to Dismiss You?
Under the Employment Rights Act 1996, there are five potentially fair reasons for dismissing an employee. These are:
- Capability or qualifications in relation to performing the work you were employed to do
- Illegality (i.e., you could not continue to work in the position without contravention of a statute)
- Some Other Substantial Reason (for example, a personality clash).
As above, one potentially fair reason for dismissing an employee is on the grounds of Capability. This includes a wide definition, including in reference to “skill, aptitude, health or any other physical or mental quality.”
Essentially, to rely on capability (which includes poor performance) as the reason for your dismissal, your employer would need to prove that this was, in fact, the reason for your dismissal. For example, that it was not used as a front for a different reason.
Your employer will also need to prove that they honestly believed, on reasonable grounds, that you were incapable of doing your job.
In The Circumstances, Did Your Employer Act Reasonably In Dismissing You?
Even if your employer can identify a potentially fair reason for your dismissal, this does not necessarily mean the dismissal was, in fact, fair. For a claim of Unfair Dismissal, the Employment Tribunal would then look at the reasonableness of the dismissal. The Employment Tribunal would consider if your employer’s decision to dismiss you falls within the “band of reasonable responses”. In essence, whether a reasonable employer could have made the same decision.
As part of this consideration, an Employment Tribunal would consider the following:
Did Your Employer Follow A Fair Procedure?
Your employer should have followed their own capability procedure (if they have one). This will usually be found in your Contract of Employment, or Employee Handbook. In any event, they should have also adhered to the principles of the ACAS Code on Disciplinary and Grievances Procedures. This is the minimum standard expected of employers.
Essentially, your employer should have:
- Made sure you understood the expected standard of performance from the start. For example, if you were expected to reach certain targets, these should have been clearly detailed and explained to you!
- Investigated the problem promptly (for example, by reviewing your targets, completed work etc) and made you aware of the problem.
- Provided you with the opportunity to improve and, if necessary, provided the required support and training. On this point, ACAS recommends that, as general guidance, you should be provided with two chances to improve (unless you have committed acts/omissions so serious, that they are deemed gross negligence).
- Provided clear timelines/targets and reviewed your progress regularly. This may be included within a Performance Improvement Plan. For more information about this, please see here – https://lincslaw.co.uk/blog/performance-improvement-plan/
- If your performance did not improve, you should have been invited to a Formal Meeting. Prior to this meeting, you should have been provided with sufficient information about your alleged poor performance, and had time to prepare your case. You should have also been informed about the possible consequences of the meeting (such as, dismissal) and your right to be accompanied. For more information about this, please see here – https://lincslaw.co.uk/blog/employee-top-tips-for-a-disciplinary-hearing/
- Considered your representations and the available evidence, and confirmed their decision in writing.
- Provided you with an opportunity to appeal your dismissal (as above).
If your employer did not follow a fair procedure before dismissing you, as above, you may have a potential claim for Unfair Dismissal in the Employment Tribunal.
Was Dismissal A Reasonable Sanction?
The Employment Tribunal will also consider whether dismissal, in your circumstances, was a reasonable step to take. For example, before dismissing you, it may have been reasonable to have considered other available options. For example, warnings, alternative employment or demotion.
Your employer should have also considered any mitigating factors, as this would potentially impact the reasonableness of your dismissal. For example, common mitigating factors include:
- Your length of service
- Your capability record
- The context of your poor performance.
The Employment Tribunal will consider the above, when deciding if dismissal was a reasonable sanction.
Did Your Employer Act Consistently?
In deciding to dismiss you, your employer should have also acted consistently. For example, if other employees have been underperforming and they have not been investigated (or indeed dismissed), your employer may struggle to defend a claim of Unfair Dismissal.
Unfair Dismissal – Time Limits
If you have been dismissed from your employment, and you wish to pursue a claim in the Employment Tribunal, it is very important that you are aware of the relevant time limits.
For a claim of Unfair Dismissal, you must start the Employment Tribunal process within three months (less one day) of the date of your dismissal. You start the Employment Tribunal process by initiating ACAS Early Conciliation. More information about ACAS Early Conciliation can be found here – https://lincslaw.co.uk/blog/acas-early-conciliation-what-is-it-all-about/
Lincs Law Employment Solicitors Can Help You
Here at Lincs Law Employment Solicitors, we understand that being dismissed from your employment can have a devastating effect on you and your family. As specialist employment solicitors, we would be delighted to help you. If you would like a free consultation with one of the team at Lincs Law Employment Solicitors, simply use the contact form, engage in a web chat, email firstname.lastname@example.org or call us on 01522 440512 and we’ll be happy to help.
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