Dismissing an employee because of poor performance
It is possible for your employer to dismiss you if you are unable to do your job. However, they must act reasonably and follow a fair procedure.
What standard of performance is required?
It is expected that you will perform your role to a minimum required standard, but you need to know what is expected of you from the outset. This may be derived from express or implied contractual terms, non-contractual policies and procedures or industry and local practice.
Standards of performance are also liable to change and must therefore be judged according to your current role. If you are dismissed an Employment Tribunal will want to know that you knew what the required standard was.
What can an employer do if you are failing to meet the required standard?
If you are underperforming, for example due to a lack of productivity or a failure to establish good working relationships with colleagues or clients, your employer should address the issue as soon as it arises. You are more likely to be able to turn your performance around if concerns are raised sooner rather than later. Your employer might be able to offer training and support to address the problem which is potentially less time-consuming and costly than going through a formal capability dismissal procedure and recruiting a replacement.
There may be external factors at play effecting your performance and which need to be addressed. For example, you may be unwell or have a disability; you may have problems with child care or caring responsibilities; you may have an excessive workload; there may be poor management within your team or you may be being harassed or bullied by a colleague. Each of these may create legal liabilities for your employer if it does not try to address them. Where your underperformance is caused or exacerbated by a disability for example, your employer must consider what reasonable adjustments it can make to support you.
Your employer may raise its concerns with you informally in the first instance but if you fail to improve sufficiently a formal meeting may be arranged and you will be informed what will happen if the required standard of performance is not met.
Dismissal for poor performance
Capability, which includes poor performance, is a potentially fair reason to dismiss an employee. Before making the decision to dismiss it is important for your employer to carry out an assessment of your performance, inform you of the findings and give you the opportunity to respond and improve. You need to understand what improvement is expected and within what timescale, which should be reasonable. Your employer should review progress with you.
Showing that your employer has followed a fair procedure and that you have been given support and the opportunity to improve will greatly improve your employer’s chances of effecting a fair dismissal.
Generally, you should receive at least two warnings before your employer dismisses for poor performance, unless there is gross negligence or you are still in your probationary period. If your poor performance is sufficiently serious, it might be appropriate to give a final written warning for the first instance of poor performance.
It is worth stating that if you are unable to do your job because of carelessness or laziness, this will usually be dealt with as a misconduct rather than a capability issue.
Where there is a dismissal, your employer must be able to demonstrate clear evidence of poor performance and that that was the reason for dismissal. Your employer must have a reasonable belief that you were underperforming when it made the decision to dismiss. Your employer may not rely on issues that come to light after the dismissal in order to justify its decision.
Your employer might consider alternative employment or demotion before taking the decision to dismiss you although there is no obligation on them to do so unless your contract provides for this.
Possible claims arising out of performance management
If your employer fails to follow an express contractual disciplinary or poor performance procedure, or breaches the implied term of trust and confidence, this may give rise to a claim of breach of contract. It may also support a claim for unfair dismissal where you are dismissed for poor performance or you resign and claim constructive dismissal because of the way in which the poor performance procedure was handled. Depending on the actions of your employer you may also be able to claim that there has been discrimination or harassment.
Can we help you?
If you need advice about your individual situation, please contact us. Call on 01522 440512 or visit our website www.lincslaw.co.uk for more information.
Kathryn Bolton
Associate, Specialist Employment Law Solicitor
Lincs Law Solicitors, Lincoln