Getting rid of an underperforming member of staff is not simple. Employees know they have rights and if you don’t do things by the book, you could face an employment tribunal faster than you can say: “It’s just not working out.” But if someone’s not pulling their weight, you’ve every right to show them the door, so long as you’re not discriminating and you’ve given them a chance to explain themselves and raise their game. It’s a tough call, but often you’ll find it has a positive effect on the rest of the team, who have probably been picking up the slack. The law is there to protect you too, so if you know your way around it, you’ll have a defence if you need it.
Assess early
An employee can only claim unfair dismissal if they have completed at least 51 weeks’ service when they’re fired. Letting them go before this point is also a far simpler process because you don’t need to follow the statutory dismissal procedure. “Employers need to be assessing very early on if a person is performing adequately,” says RebeccaLake, a lawyer at law firm Davenport Lyons. “You’d be amazed how many people don’t tackle performance issues formally, usually because they’re too nice. They see problems early on, but keep giving people another chance. Beyond a year’s service, dismissing them is far more difficult, lengthy and risky.” So you need to put tools in place to flag up and address performance concerns as early as possible.
Use Probation
carefully
One such tool is introducing a probationary period. While this allows you to set a shorter notice period during this time, if you don’t use it to monitor your new staff member’s progress, it’s a pointless exercise. “You should be actively assessing someone’s work and the way they fit into the business,” says Lake, who recommends a mid-probation assessment and a review at the end of the period, where you’ll decide whether or not to keep them on.
It’s not me, it’s you
It sounds brutal, but if you’re letting someone go because they’re not doing a good enough job, then you have to spell this out to them. Even if they have been with you for less than a year, failure to do so could leave you open to discrimination claims.
“People often don’t want to tell the person that the reason behind their dismissal is their performance, because they think it’s a bit personal and haven’t known them that long. That’s a mistake,” warns Lake. “You need to make it clear that it is.”
Set down your expectations in your employment contract, including a full job description. You can then directly refer to this if they are not being met.
Statutory procedure
After a year’s service, you must follow the statutory dismissal procedure to ensure that you can defend yourself against a claim for unfair dismissal. “By this point, things get a bit tricky,” says Lake.
Begin by telling the employee what aspects of their work you are unhappy with and give them a month to see if they can pull their socks up. If they don’t, it’s time to think about kicking off the formal procedure. This involves writing to the individual, setting out your allegations with supporting evidence and inviting them to a disciplinary meeting to discuss it. At the meeting, give them a chance to formally explain their situation and then issue a decision. If necessary, give them a warning at one of the appropriate levels: verbal, written, then final written, depending on how serious it is and how they came across to you.
“You would then need to give them a plan for improvement,” says Lake. “You’d be looking at listing objectives for them to achieve over a reasonable time period, and making sure that if they need extra support, they receive it.
“For example, if they say they’re not performing well because they’re overworked, reallocate some of their work and give them clear instructions on how to tackle the problem going forward, such as emailing their manager.”
Review the objectives over a set period of time, then if they haven’t been achieved, convene a further hearing and, if necessary, move on to the next warning stage.
Is it the right call?
“If it’s performance-related, I’d go back to the absolute basics,” says Astrid Yarwood, head of legal at NorthgateArinso. “Look at what they’ve done, what you expect them to do and where you hope they will be in the next three months. Are they delivering within the business or are they actually just a cost?”
If you’ve noticed a sudden dip in performance in an otherwise star player, it’s your duty as an employer to look for an underlying reason and offer support, stresses Yarwood’s colleague Dean Gardner, NorthgateArinso’s strategic human resources outsourcing director. “Ask questions. Say: ‘This isn’t like you, is everything OK?’ You may have to go down the route of support or counselling, depending on what their problems are and how big an employer you are,” he says. “If you’re a multimillion pound organisation, you’re obliged to provide a significant amount of support. If you’re a plumber with three employees, it isn’t viable for you to pay for them to see a doctor. It’s about what’s reasonable given who you are.”
When assessing whether your reactions were deemed as reasonable, a tribunal will take into account your size and resources as an employer.
Keep written evidence
“The key in a tribunal is that written evidence is king,” says Lake. “You don’t want to be relying on oral witness evidence for why you did something.” In other words, if you’re going through a poor performance procedure, you need to document every step from the word go. If you have an informal chat with someone, make a note on their personnel file. If you’re sending emails about performance issues, keep copies of those emails, and if you go through disciplinary proceedings, take written minutes of all the meetings. “That’s the kind of evidence tribunals love,” Lake adds.
Managing
the impact
You might think giving someone the chop would have a negative impact on the rest of your staff, but often the opposite is true. “If you’ve got a poor performer in your midst, they’re rarely working in isolation,” says Lake. “Often they will have a devastating impact on other employees, because they are picking up the slack and won’t be able to rely on that individual.” Showing that, as a company you pull people up if they’re not performing properly, offer support, but take action when required can have an extremely positive effect on morale.
“It can show employees you’re interested in their wellbeing, but also sends out a warning that if you’re not up to scratch this isn’t the place for you,” adds Lake.
Following a dismissal, she recommends telling the immediate team members and sending an email round to everyone else. “You don’t need to go into detail, just say this is to confirm that X has left the company,” says Lake. “They don’t need to know any more, and frankly you shouldn’t be getting into those discussions with the other employees.”