An employee can be dismissed if they are unable to do their job. However, the employer must act reasonably and follow a fair procedure.
Capability and qualifications are potentially fair reasons for dismissing an employee. Capability is defined by reference to skill, aptitude, health or any other physical or mental quality. Qualifications means any degree, diploma, or other academic, technical or professional qualification relevant to the position.
If an employee is unable to do their job because of carelessness or laziness, this will usually be dealt with as a misconduct rather than a capability issue.
What standard of performance is required?
It is expected that an employee will perform their role to a minimum required standard but this standard will vary from role to role and the employee needs to know what is expected of them from the outset. What the required standard is may be derived from a number of sources:
• Implied contractual terms – such as an employee’s duty to obey the employer’s lawful and reasonable instruction
• Express contractual terms – which might provide for what qualifications are required or what the performance targets are
• Non-contractual policies and procedures – such as operating systems or quality manuals set out in a staff handbook
• Industry and local practice – such as health and safety or professional body requirements
Standards of performance are also liable to change and must therefore be judged according to an employee’s current role. If an employee is dismissed an Employment Tribunal will want to know that the employee knew what the required standard was.
Employers can make effective use of probationary periods for new employees or existing employees who have been promoted. A performance appraisal system can also be used to identify any performance issues and show that the employee has been given the opportunity to improve.
What can an employer do if an employee is failing to meet the required standard?
If an employee is underperforming, for example due to a lack of productivity or a failure to establish good working relationships with colleagues or clients, the employer should address the issue as soon as it arises. An employee is more likely to turn their performance around if concerns are raised sooner rather than later. An 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 affecting the employee’s performance and which need to be addressed. For example, the employee may be unwell or have a disability; they may have problems with child care or caring responsibilities; they may have an excessive workload; there may be poor management within team or they may be being harassed or bullied by a colleague. Each of these may create legal liabilities for the employer if it does not try to address them. Where an employee’s underperformance is caused or exacerbated by a disability for example, the employer must consider what reasonable adjustments it can make to support the employee.
The employer may raise its concerns with the employee informally in the first instance but if the employee fails to improve sufficiently a formal meeting should be arranged and the employee informed what will happen if the required standard of performance is not met. An employee does not have the right to be accompanied at an investigatory meeting but does have that right at a hearing that could result in disciplinary action being taken.
Dismissal for poor performance
As stated above, capability, which includes poor performance, is a potentially fair reason to dismiss an employee. Before making the decision to dismiss it is important for the employer to carry out an assessment of the employee’s performance, inform the employee of the findings and give them the opportunity to respond and improve. The employee needs to understand what improvement is expected and within what timescale, which should be reasonable. The employer should review progress with the employee.
Showing that the employer has followed a fair procedure and that the employee has been given support and the opportunity to improve will greatly improve the employer’s chances of effecting a fair dismissal.
Generally, an employee should receive at least two warnings before the employer dismisses for poor performance, unless there is gross negligence or the employee is still in their probationary period. If an employee’s poor performance is sufficiently serious, it might be appropriate to give a final written warning for the first instance of poor performance.
Where there is a dismissal, the employer must be able to demonstrate clear evidence of poor performance and that that was the reason for dismissal. The employer must have a reasonable belief that the employee was underperforming when it made the decision to dismiss. The employer may not rely on issues that come to light after the dismissal in order to justify its decision.
An employer might consider alternative employment or demotion before taking the decision to dismiss an employee although there is no obligation on the employer to do so unless the contract provides for this.
Possible claims arising out of performance management
If the 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 the employee is dismissed for poor performance or they resign and claim constructive dismissal because of the way in which the poor performance procedure was handled. Depending on the actions of the employer the employee may also be able to claim that there has been discrimination or harassment.
How can LincsLaw help?
If you are an employee going through a poor performance procedure or you have been dismissed as a result and would like some advice on your individual situation, we would be pleased to help. Equally if you are an employer with a poorly performing employee and would like advice on what to do next, we can help.
Please contact us on 01522 440512 or 01522 440515 (direct dial) or visit our website at www.lincslaw.co.uk.
Specialist Employment Solicitor
Lincs Law Employment Solicitors