DISMISSAL - 18.05.2010

Can you get a poor performer out more quickly?

Not up to the job

It doesn’t matter how careful you are, an employee can turn out to be a disaster. For a new hire they might look good on paper and perform well at interview, but as soon as they take up the role, they fall short of the mark. With promotions a similar situation can occur; whilst the employee worked well at a lower level, they clearly struggle with more responsibility.

Trained but not gained

Of course, you will do what you can to help them, e.g. with training, but the reality is that if the situation continues it won’t be good for business. But, unlike in politics, you can’t just waltz up to the employee and say, “Don’t bother coming back tomorrow!”

It’s unfair. As we’ve previously explained, even if an employee has committed an act of gross misconduct you can’t demand their resignation; you have to follow your disciplinary procedures (yr.11, iss.13, pg.3, see The next step).

Risk. A resignation must always be given voluntarily. If it’s not, there’s a good chance the employer concerned will be on the receiving end of a claim for unfair dismissal.

What can you do?

So as far as new hires and promotions are concerned, is there anything you can do to protect yourself if you discover that you have an under-performing employee? Well, you can insert a probation period clause into your contracts of employment (see The next step), but there are things that you need to watch out for.

New staff

During the probation period of a new hire - generally between three and six months - these clauses allow you to rely on a shorter notice period, e.g. one week instead of one month. So if you discover that they’re not up to scratch, you can serve them with the smaller amount of notice.

Note. Although they won’t be able to claim unfair dismissal (they don’t have one year’s continuous service), they still have the right to bring other claims, e.g. for accrued holiday pay.

And for promotions

Where a member of staff is promoted, a probation period clause is also useful. If they don’t meet expectations, or it’s clear that they are struggling in their new role, you will be able to put them back into their old job. In other words, their promotion isn’t permanent until it’s been confirmed.

Tip 1. Again, you can set a period of three to six months for them to be assessed in their new role.

Tip 2. In both cases, as the employee knows their employment is being assessed and, as such, it’s subject to confirmation, this should mean that they work harder to prove themselves.

Important point. Finally, if there is a problem, act before the probation period ends. The courts have made it very clear that if you miss this by just one day, employment is automatically confirmed and you can’t rely on the clause.

For a link to the previous article (PS 12.11.03A) and for a free sample probation period clause (PS 12.11.03B), visit http://personnel.indicator.co.uk.