In this article, Kathy Daniels, employment law author and associate professor, gives a summary of the legal issues surrounding the management of poor performance in the workplace.

Poor performance is one of the most frustrating issues to occur in the workplace. It can lead to customer complaints and dissatisfaction from colleagues who have to correct errors or work harder to make up for the poorly performing employee. What can you do?

The first question to answer is whether the problem is occurring because the employee “cannot do” the work or “will not do” the work. The two issues need addressing in different ways.

In the Employment Rights Act 1996 there are five potentially fair reasons for dismissal. Two of these reasons are conduct and capability. If the problem is that the employee cannot carry out the delegated tasks, then we have a capability issue. If the issue is that the employee will not do the work, then we have a conduct issue.

Capability

Capability is defined in the Employment Rights Act 1996 as “skill, aptitude, health or any other physical or mental quality”. You can dismiss an employee for lack of capability, but you will always have to evidence that you took steps to help the employee reach the required standards before considering dismissal.

In Mansfield Hosiery Mills Ltd v Bromley [1977], an employee successfully applied for a job as a boiler service fitter, where the job advertisement stated that training would be provided. He initially performed well and was promoted to supervisor, but then he was given no training in his supervisory duties. He was dismissed and this was found to be unfair because his employer had not provided enough support in order for him to reach the required standards.

In Gozdzik and Scopigno v Chlidema Carpet Co Ltd [1979], two employees working as winders consistently underperformed. They were provided with additional training but still did not meet the required standards and eventually were dismissed. This was a fair dismissal because the employer had supported the employees in reaching the required standards.

Conduct

Conduct is separated into gross misconduct and misconduct. Gross misconduct can lead to summary dismissal (dismissal without notice), whereas misconduct must follow a series of disciplinary warnings and then be with notice.

Gross misconduct is, therefore, the most serious situation. Common examples are situations such as theft, vandalism or fraud. It will be rare that poor performance equates to gross misconduct, but it could be possible if the employee is simply refusing to do work that they should do, or has been particularly rude or obstructive.

It will be more usual to give an employee a disciplinary warning, explaining that the attitude to work is unacceptable. However, if the warnings have no effect, dismissal could be fair. In Mintoft v Armstrong Massey Ltd t/a UAC Motors of Scarborough [1980], an employee working as a sales manager persistently refused to comply with paperwork requirements. Despite a number of warnings, he did not improve and eventually he was dismissed. This was a fair dismissal because the employee had demonstrated in his attitude that he never intended to work in the way that was required.

Acas Code of Practice: Disciplinary and Grievance Procedures

For any disciplinary action to be fair, you must follow the requirements of the Acas Code of Practice: Disciplinary and Grievance Procedures. You can put in place a more rigorous process than set out in the Code, but you must not do less.

The Code recommends that employers give at least two levels of warning before dismissal. It recommends that a formal written warning remains on the employee’s record for six months, and that a final written warning remains on the employee’s record for 12 months.

If a disciplinary warning is given for poor performance, it must be accompanied by clearly explained targets. The employee must be clear that not meeting these targets could mean that the next level of warning is given and that, ultimately, this might lead to dismissal.

The following procedures should be followed.

  1. Before giving a formal warning, you should make the employee aware that you are not satisfied with the level of performance, and why. Hopefully, the employee will make the required improvement without formal disciplinary warnings being required.

  2. If the employee does not make the required improvements, they should be invited to a disciplinary meeting. As this is a formal meeting, the employee has the right to be accompanied by a colleague or a trade union representative.

  3. At the meeting, the employee must be given the opportunity to explain any reasons for the poor performance, and you must address those reasons. For example, this could involve putting additional training in place. Although this is a disciplinary meeting, the emphasis should be on solving the problem, rather than rushing to the final stage of dismissal.

  4. Clear targets should be agreed with a review date in place. As a formal warning remains on the record for six months, it is recommended that a review takes place after around three months. The employee should be told that no improvement will result in a further warning being given.

  5. If there is improvement at the review point, make it clear that this must be maintained. If there is no improvement, you could go ahead and give a further warning. You do not have to wait until the six months has elapsed.

  6. If you issue a final written warning, you must make it clear that the next step would be dismissal.

Actions

  • Review your disciplinary procedure and ensure that it meets the requirements of the Acas Code of Practice: Disciplinary and Grievance Procedures.

  • Ensure that the procedure is available for all employees.

  • Make sure that your line managers receive training in using the disciplinary procedure.

  • Set out clear guidelines on which level of management is authorised to give disciplinary warnings.

  • Look for trends in poor performance. Are there some jobs that employees are struggling to do? If so, review the training that is offered.

Last reviewed 8 January 2019