Poor Employee Performance

One of our employees isn’t adequately performing the role – what can I do?

Poor employee performance should be handled in a different way to misconduct. There may be valid grounds for you to dismiss an employee on the grounds of poor performance but the procedure must be handled carefully.

It firstly depends how long the employee has been employed by the employer.

Since 6th April 2012, an employee has to have 2 years complete service to be eligible to issue a claim to the Employment Tribunal for unfair dismissal. If however an employee can claim that their dismissal is connected to a discriminatory reason and they have a protected characteristic, as defined in the Equality Act 2010 (Sex, Disability, Race, Age, Religion or Religious belief, Sexual Orientation, Undergoing gender reassignments, pregnancy or maternity, marriage or civil partnership), or the reason for the dismissal is for seeking to enforce a statutory right, ie. they have raised a health and safety issue to the employer and/or whistle-blowing. In those circumstances, an employee may gain protection and be eligible to issue a claim from when they submit a job application.

Where there are no such issues, an employer can dismiss an employee on notice who has up to 1 year 51 weeks service.

A better way to deal with such situation however would be to put a probationary period in all employee’s contracts and re-assess the employee’s performance at the end of the probationary period.  If the employee satisfactorily passes the probationary period, the employer should carry out a review 6 months before the employee has been employed for 2 years. This will enable the employer to consider whether the employee is adequately fulfilling the role they were employed to carry out or whether they should be put on a performance plan well before the end of the 2 year period.

Managing S.M.A.R.T.

For employees who have more than 2 years service but who are failing to adequately perform their job role, then it would be reasonable to meet with the employee to explain what is required and how they are failing to fulfil their duties. The employer should set SMART (specific, measurable, achievable, reasonable and time specific targets) for the employee to achieve within a set timescale, it may be helpful for both the employee and the employer to have these targets documented in a performance improvement plan (PIP).  If the employer is considering coupling the performance improvement plan with a disciplinary warning, the employee should be informed of their right to be accompanied at a meeting which may result in a disciplinary sanction being imposed on them.

If you would like assistance in managing problems with staff who are under performing, please contact us.