Legal Article - Employment Law

Poor Employee Performance

It is possible to fairly dismiss employees who are incompetent, unsuitable, sloppy, lazy or otherwise inadequate once it is clear they are harming the business. To do so the employer must have grounds for believing the employee is incompetent and be reasonable in dismissing for incompetence.

It is well established that the employer decides whether or not an employee is incompetent. The employer does not have to prove, in Tribunal, that an employee is, in fact, incompetent. What the Tribunal have to judge is whether the employer had grounds for his view and was reasonable in dismissing for it.

This does not mean an employer can simply say “They are not good enough” and leave it at that. There must be reasonable evidence, such as poor work, failure to reach targets, customer’s complaints, poor management, capability, pressure from third parties. An employer must be sure of their facts and show they took steps to investigate the facts.

This will involve discussion with the employee. Consistency is also important.

In the employment relationship, the employer, in the stronger position, also has obligations. The employer should provide:

• Sufficient instruction to the employee so he knows what their job is, to whom  they are responsible

• Methods of work, etc.

• A standard that is fair and reasonable and well known and understood

• Proper training
• Supervision and support.

No matter how incompetent an employee is, a dismissal may still be unfair if a reasonable procedure is not adopted. The proper course of action to take is as follows:

• The first step is to investigate the lack of performance and identify the problem.

This could show that the fault lies with the employer, e.g. poor training

• consult with the employee and give assistance to improve

• warn the employee of the consequences of failure to improve (it is usual to have at least two written warnings before dismissal)

• give the employee sufficient time, at each stage, to improve or show improvement

• If dismissal is considered, give the employee a last opportunity to state his case

• If possible, allow the employee the right to appeal against the decision to dismiss him/her.
The company may have a procedure for such cases. If so, IT MUST BE FOLLOWED.

Managers and senior staff generally should be aware of whether or not they are performing satisfactorily, thus the need for explicit warnings is not so important. BUT, to be safe, it is sensible to warn in the usual manner.

Probationers are obviously on trial, their performances being the measure of their future employment. However, the employer’s duty to warn, train or supervise is higher, especially with regard to employees with service who are promoted to different positions. Long service employees cannot simply stand on their length of service to avoid dismissal, although they do need to be handled very carefully.

For example, the length of time given to improve will have to reflect the long service. In cases where employees just cannot cope or fall behind with modern methods, the duty to train is reinforced. With regard to salesmen, it is especially important that you can establish any targets set (if set) are reasonable.

Required Qualifications

Qualifications relate to any degree, diploma or other academic, technical or professional qualification relevant to the position. Therefore, if you require that all your mechanics should possess a valid driving licence, this is a qualification you attach to the job.

Where an employee loses a qualification or where the policy of the company changes with regard to qualifications, it is still important to treat that employee reasonably. In a claim for unfair dismissal, you will need to establish that:

• The qualification was a necessary requirement for the job

• You have sought alternative employment for any employee who has lost or cannot obtain the necessary qualification.

Published: 03 Jun 2011


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