Poorly performing employees cost businesses a huge amount of time and money, not only in terms of production but also in management time and a possible knock-on effect with the employee's colleagues. Many employers choose to ignore the problem rather than to deal with it in the hope that the problem will somehow correct itself ("the Ostrich Syndrome”). In our experience, this rarely (if ever) happens.
What usually happens is that the employee's performance gradually gets worse and, eventually, the owner/manager loses patience and dismisses the employee. A claim for unfair dismissal invariably follows and, in the absence of any formal procedures having been adopted, that claim would undoubtedly be successful.
In the meantime, the employee's colleagues see that no action is being taken by management. They quite reasonably form the view that if that employee cannot be bothered and suffers no adverse consequences, why should they?
When employers are asked why they don't address performance issues, they often say that they like to try and maintain a friendly or family-style atmosphere. However, such an atmosphere where issues are not addressed comes at a price.
Businesses should have in place a disciplinary procedure that is designed to secure an improvement in employee performance. Such procedures should involve holding a meeting with the employee, issuing an improvement note setting out the areas of underperformance, what is needed to improve, and a timescale - with a warning that a failure to improve will result in the next stage of the procedure being invoked.
The next stage is typically a final warning, followed by dismissal.
At each stage, the employee needs to be written to in advance of the meeting, setting out the issues and allegations and enclosing copies of any evidence being relied on. The employee is entitled to be accompanied at the meeting by a work colleague or by a trade union representative. At each stage, the employee should also be offered a right of appeal.
If the above procedure is followed, as long as the targets that are set are reasonable, the employee has had sufficient training, support and supervision and a reasonable period of time has elapsed between each stage, a dismissal is likely to be regarded by a Tribunal as fair.
There are alternatives to these formal procedures. In appropriate cases, employers might consider workplace mediation or - if the employee says that he wishes to leave the business - deals and compromise agreements can be agreed. Please refer to other sections of our website for further information on these topics.
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