Performance-related dismissals - 5 things you should know

Performance-related dismissals are unfortunately common but the law around them does not provide any specific procedures which companies must follow.

Instead, according to the UK government, the key consideration is that the process surrounding performance-related dismissals is 'fair'.

The onus is therefore on a company to put in place the necessary processes surrounding performance reviews to help avoid any claims from employees who believe they have either been sacked unfairly, or discriminated against.

Workers employed in construction performing

Companies cannot suddenly dismiss employees

Staff cannot be suddenly or unexpectedly dismissed. For a performance-related dismissal to take place, an employer needs to carry out an efficient and effective process to show they have done all they can to help a staff member improve their contribution.

Adhere to a performance review process

Before a performance-related dismissal can be enacted, an employer will have to follow a performance review process. These usually follow Acas's performance management recommendations which involve a system of warnings, reviews and training opportunities.

The Acas Code of Practice on disciplinary and grievance procedures provides an employee with achievable targets put in place over a realistic period of time. Warnings will be verbal and written, and the process will aim to offer all parties fairness and transparency throughout.

Consider how long an employee has been in the job

Any employee who has been in their job for two years or more will be protected against unfair dismissal. If this right is believed to have been breached, they will be able to launch a claim in an employment tribunal against their employers. A tribunal may deem a dismissal to be unfair if the correct process has not been followed by the company.

If an employee has been in their role for less than two years, they will only be able to challenge the decision if they believe they have been discriminated against.

Employers should keep evidence to support the case for dismissal

Any evidence to support the case for dismissal should be retained by an employer and shared with the employee during each stage of the performance review. This can be in the form of emails detailing complaints from colleagues or evidence of bad performance, such as poor work. It’s also important for employers to be clear in their communication throughout the dismissal process.

How to dismiss an employee

In some situations, employees will fail to improve their performance and the decision will be made to dismiss them.

Before dismissal, an employee must be invited to attend a meeting where this decision is explained. A written letter should be sent to the employee ahead of this meeting to explain why it is taking place and the likely result. An employee has the right to bring someone to the meeting with them, as long as there is no conflict of interest.

The decision to dismiss the employee should be explained in a face-to-face meeting with all the reasons and evidence gone through and discussed. After the meeting, the employee should be given written notice of the decision, alongside information outlining what to do if they wish to launch an appeal.