Dismissal for Poor Performance

Dismissal for poor performance is one of the potentially fair reasons for dismissal, but employers must follow proper process.

When Performance Dismissal Is Fair

Legal Position

"Capability" is a potentially fair reason for dismissal under s.98(2) of the Employment Rights Act 1996.

For dismissal to be fair, the employer must:

1. Have reasonable belief that performance is inadequate
2. Follow a fair procedure
3. Act reasonably in treating it as sufficient reason

What Counts as Poor Performance

• Not meeting targets or KPIs
• Quality of work below required standard
• Repeated errors
• Inability to learn new skills needed for role
• Failure to complete tasks
• Not meeting role requirements

What's NOT Poor Performance

Issue	More Likely to Be
Refusing to work harder	Conduct issue
Deliberately not performing	Conduct issue
Being off sick	Sickness absence
Skills becoming obsolete	Redundancy

Fair Process

Step 1: Set Clear Expectations

From the start, employees need:

• Clear job description
• Defined targets and standards
• Understanding of what "good" looks like
• Regular feedback on performance

Step 2: Identify the Issue

When performance falls short:

• Document specific concerns
• Compare to expected standards
• Consider whether expectations were clear
• Rule out other causes (training gaps, workload, etc.)

Step 3: Informal Discussion

Before formal action:

• Discuss concerns with employee
• Understand their perspective
• Identify any barriers
• Offer support
• Set informal improvement targets

Step 4: Formal Performance Management

If no improvement after informal stage:

1. Formal meeting to discuss concerns
2. Performance Improvement Plan (PIP) with specific targets
3. Support - training, coaching, resources
4. Regular reviews during PIP period
5. Warning if improvement insufficient
6. Final warning if still insufficient
7. Dismissal meeting if no adequate improvement

Performance Improvement Plans (PIPs)

What a PIP Should Include

Element	Details
Specific concerns	What exactly is falling short
Required standards	What good performance looks like
Measurable targets	How improvement will be measured
Support offered	Training, resources, mentoring
Review dates	When progress will be assessed
Consequences	What happens if targets not met
Duration	How long the PIP lasts

PIP Duration

Typical lengths:

• Simple roles: 4-6 weeks
• Complex roles: 2-3 months
• Senior positions: 3-6 months

Should be reasonable for the improvement needed.

Support During PIP

Employer should provide:

• Regular 1-to-1 meetings
• Training if skills gap
• Clear feedback
• Resources needed
• Reasonable adjustments if applicable

What If You Improve?

If targets met:

• PIP successfully completed
• May continue monitoring
• Record kept but not as warning
• Return to normal management

Warnings

First Warning

If PIP targets not met:

• Formal written warning
• Extended improvement period
• Continued support
• Clear message that dismissal possible

Final Warning

If still no adequate improvement:

• Final written warning
• Further review period
• Last opportunity to improve
• Explicit that dismissal will follow

Progression

Normal progression:

1. Informal stage
2. Formal PIP (first warning)
3. Extended PIP (final warning)
4. Dismissal

Can be compressed if:

• Very serious performance failure
• Senior role with high expectations
• Immediate impact on safety/customers

The Dismissal Meeting

Before the Meeting

Employee should receive:

• Written invitation
• Concerns clearly stated
• Evidence of performance issues
• Right to be accompanied
• Warning that dismissal is possible

At the Meeting

1. Explain the concerns
2. Review PIP outcome
3. Allow employee to respond
4. Consider any mitigating factors
5. Consider alternatives
6. Adjourn to decide
7. Communicate decision

Considering Alternatives

Before dismissing, consider:

• Demotion to suitable role
• Transfer to different position
• Extended improvement period
• Part-time or reduced duties
• Retraining

Employee Rights

Throughout the Process

You have the right to:

• Know what's expected
• Receive fair feedback
• Be given chance to improve
• Receive support
• Be accompanied at formal meetings
• Appeal decisions

Challenging Performance Concerns

You can:

• Dispute the standards being applied
• Argue targets were unrealistic
• Point to lack of training/support
• Highlight factors affecting performance
• Provide your own evidence

Disability Considerations

If you have a disability:

• Employer must consider reasonable adjustments
• Performance targets may need adjusting
• Failure to adjust could be discrimination
• Additional protection against dismissal

Unfair Dismissal

When Performance Dismissal Is Unfair

Issue	Why It Makes Dismissal Unfair
No clear standards	How could you know what was expected?
No warning	No chance to improve
No support	Employer didn't help you improve
Too short PIP	Insufficient time given
No review meetings	No feedback during PIP
Inconsistent treatment	Others not treated same way
Ulterior motive	Performance is excuse for something else

Bringing a Claim

Requirements:

• 2 years' continuous service
• Claim within 3 months less 1 day
• ACAS early conciliation first

What Tribunal Considers

• Did employer have genuine belief in poor performance?
• Was belief based on reasonable grounds?
• Was there adequate investigation?
• Was dismissal within range of reasonable responses?

Common Issues

Subjective vs Objective

Objective	Subjective
Sales targets not met	"Attitude isn't right"
Error rates too high	"Not a good fit"
Productivity below benchmark	"Doesn't seem engaged"

Objective measures are easier to defend.

Performance vs Conduct

Be clear about which it is:

• Performance: Can't do the job
• Conduct: Won't do the job

Different processes may apply.

New Manager, New Standards

If a new manager has different expectations:

• Standards should be clearly communicated
• Time given to adapt
• Not fair to dismiss immediately for new standards

Tips for Employees

If Put on a PIP

1. Understand it - what exactly is required
2. Get everything in writing
3. Engage positively - show willing
4. Document your efforts
5. Ask for support
6. Keep records of meetings
7. Meet targets if you can
8. Consider if role is right for you

If Facing Dismissal

• Request all documentation
• Prepare your response
• Bring companion to meetings
• Appeal if you disagree
• Know tribunal time limits
• Seek advice early