You have a range of options as an employer when an employee is not performing.
The key thing is to deal with issues of poor performance as quickly as possible. Employees are not necessarily aware that they are not performing to the required standard. This can lead to bad habits developing and the issue can reach a stage where there is nothing more you can do informally.
If you capture problems, you may be able to correct the problem early on.
It’s important to recognise the distinction between poor performance which is referred to as “capability” and concerns about “conduct”.
Poor performance is an issue of capability in which an employee may not have the capacity to fulfil their contractual obligations. Conduct is concerned with the employee’s behaviour. An example of poor performance could be not achieving the required level of sales, poor conduct could include an employee who has been dishonest in an expenses claim.
At the early stages of poor performance, it is often a question of having a quiet word with the employee and expressing to them how they are not fulfilling their role.
Make sure that your always keep notes of these conversations even if they are quite brief. This means that if you do have to move to a formal stage you have a record of all the earlier steps that you have taken.
Sometimes the performance does not improve, and you need to start a disciplinary process. This process can ultimately lead to dismissal, formal warnings, or demotion.
If the employee has less than two years’ service, they do not have unfair dismissal rights. In practice this means that you do not have to go through a set procedure to dismiss the employee fairly. So, in these cases you may decide simply to dismiss the employee with their contractual notice.
Caution should always be applied though as an employee with less than two years’ service could still bring several other claims such as discrimination. In cases of poor performance, if the employee connects issues with performance and a disability, this could lead to a discrimination claim.
If the employer has more than two years’ service you will need to go through a fair process to justify any subsequent dismissal.
The disciplinary process will involve convening a disciplinary hearing and allowing the employee to respond to the concerns. A decision would then need to be made about the outcome and a right of appeal provided.
As with many other workplace issues it may be worth considering a negotiated solution. This would involve an off the record conversation with the employee {WHAT IS AN OFF THE RECORD CONVERSATION}.
