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Yes, you can fire poor performers!

Much has been said recently by the Government about how its current package of intended employment law reforms will make it easier for firms to dismiss under-performing staff. But how difficult is it, in fact, to fire under-performing staff and will any of the intended reforms actually make a difference?

One crucial point to remember is that employees are only protected against unfair dismissal once employed for two years (one year if their employment began before 6 April 2012). It obviously makes sense to give new employees every chance to succeed. Equally, their work must be rigorously scrutinised. The employer should provide a new starter with a proper induction into the business and his role within it. New appointments should always be made subject to completion of a satisfactory probationary period, typically three months. If it soon becomes clear that the employee simply cannot do the job then his employment should be ended straightaway.

The employee can simply be told of the decision to dismiss him and then either given notice and required to work it or terminated there and then and given pay in lieu of notice. Either way, the decision should be confirmed in writing and the employee told his poor performance was the reason for his dismissal. Under the present law, a protected employee who consistently under-performs can be fairly dismissed on the ground of “capability”. However, to dismiss such a person fairly, his employer must follow a fair and reasonable procedure. In reality, tackling a poorly performing employee need not be as problematic as people expect it to be. The key thing is to be firm, organised and methodical and to ensure a disciplinary process is set up and followed through fairly, either to the point where the employee is back on the “straight and narrow” or until he is dismissed. Following a fair and reasonable procedure will involve taking some or all of the stages described below, all of which should be set out in more detail in a published disciplinary procedure. While managers often do not want to confront employees over perceived inadequacies in their performance, sometimes all that is needed is an informal meeting to make an employee improve, to be clearly reminded what standards are expected of him and where he is falling short. If after an informal warning has been given a review shows that the employee is still not performing satisfactorily, then the formal procedure should be implemented against him. A formal disciplinary procedure, when applied to performance shortcomings, will conventionally consist of three warning stages. A typical model will be: stage 1 – verbal warning; stage 2 – first written warning; stage 3 – final written warning. However, a two-stage procedure, with just first and final written warnings, can in some situations be justified.

Where an employee is given a final written warning but fails to achieve his targets in the following review period, the employer should write to the employee to advise him that his performance is still considered to be unsatisfactory and why, inviting him to the meeting to discuss it. The letter should make it clear the final stage of the employer’s published disciplinary procedure applies and alert the employee to the fact that the meeting might result in his dismissal. If the decision is taken to dismiss the employee, he should be informed verbally (preferably face-to-face) and given the reasons. The decision must be confirmed in writing and the employee notified of his right of appeal. It is unlikely that new employment laws are going to have any positive practical effect on the challenges businesses face when deciding what to do about poorly-performing staff. However, employers need to realise that dismissing poorly-performing employees without winding up in the Employment Tribunal is not as hard as they think; they just have to be firm.

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