POOR PERFORMANCE - 10.02.2020

Poor performance: must you consider an alternative role?

Slacking off

One of your employees is becoming a significant problem. It started with them making the odd careless error, but now their work is woefully inept. You’ve had enough and want to dismiss them.

Having discussed the situation at a senior level, a manager says that the possibility of suitable alternative employment must be considered before you can terminate their employment.

Fact or fiction?

Is this true or can you dismiss a poorly performing employee without taking this step? As far as the law is concerned, there’s nothing which compels you to consider any alternative work for an underperforming employee.

The only exception would be if the employment contract contains a provision which says that in the case of underperformance you will consider alternative work.

Tip. This type of clause is rare; it’s usually found where employees are promoted internally.

Tread carefully

Nevertheless, this doesn’t mean that you can simply dismiss an underperforming employee. For any dismissal to be fair, justified and reasonable you must be able to show:

• specific examples of how the employee has underperformed - you will need more than one or two
• what was done to support the employee to improve their performance, e.g. further training, a review of their workload or coaching
• that the employee was given a reasonable period of time for improvement
• that the employee received regular reviews and feedback about their performance (and any improvement) during the review period
• that a decision to dismiss was the last resort.

Why is this important?

In the event a poorly performing employee is dismissed and they bring a claim against you, the tribunal will carefully examine whether you acted reasonably in the circumstances.

A knee-jerk decision, or one that’s not backed up with evidence, is likely to land you in hot water.

Voluntary option

Whilst you’re under no statutory duty to consider alternative work, are there any benefits to consider it on a voluntary basis?

Tip 1. Although alternative work would avoid a dismissal situation, you’ll be stuck with the employee for longer. Also, there’s nothing to stop them from underperforming in any alternative role they are moved to. For that reason alone it’s far safer to dismiss. Employers who have followed a fair and reasonable dismissal process will have nothing to worry about.

Tip 2. Our checklist will keep you on the right side of the law (see The next step ).

For a dealing with poor performance checklist, visit http://tipsandadvice-personnel.co.uk/download (PS 22.04.04).