How to dismiss for poor performance: step-by-step

Employers must remember that a fair dismissal process aims to prevent dismissal, by
enabling the employee to improve their performance.

Managers should refer to documentation as appropriate:

 Contract of employment
 Job description
 Training records
 Performance evaluations
 Employee handbook
 Current or previous strategies for improving performance
 
Your goal should not be to reach the point of dismissal as fast as possible. The steps
you should follow when dismissing for poor performance are outlined below; it is
important to ensure your obligations towards the employee are met at each stage,
before progressing the disciplinary process.

1. Issue a verbal warning

Before any formal action is taken, the employee’s manager should make them aware of
the poor performance with an informal chat. This should involve explaining to the
employee precisely how their performance has fallen short of expectations. The
employee should be given the opportunity to express concerns and ask for additional
support. The employer must make it clear that formal disciplinary action will be pursued
if performance is not improved.

2. Invite to a disciplinary meeting

According to the ACAS Code, the hearing shall take place as soon as possible but not
so soon that the employee does not have time to prepare their defence. If there is a
suitable internal procedure, the employer must follow it when setting deadlines. As a
general rule, giving notice that is less than two working days or more than 10 working
days may be deemed unreasonable.

If the employee’s performance does not improve, the employer should send an official
letter or email inviting them to a disciplinary meeting. The letter must state:

 The precise nature of the poor performance

 The purpose of the meeting (to discuss disciplinary action)
 The fact that the employee may bring a union representative with them
 The possible outcomes of the meeting
 The time and date of the meeting (which must allow time for the employee to
prepare responses, without unreasonable delay)
 

3. Hold a meeting

The purpose of the hearing is to:

 Allow both the employer and the employee to properly express their positions.
 Allow the employee plenty of time during the interview to address and explain
any concerns brought up regarding their performance.
 Investigate the issue and, if feasible, pinpoint the source of the poor
performance.
 Find out whether there is any remedial action that may be performed.
 Obtain the employee’s pledge to meet the necessary standard.
 Give the employee a reasonable amount of time to meet that criteria.
 Decide on a monitoring system for that time frame.
 Inform the employee of the consequences if the standard is not fulfilled.
 

The employer must once again fully explain the nature of the poor performance. The
employee should again be given the chance to explain themselves and/or request
additional support. When the meeting is concluded, the employer should decide whether
to grant the employee additional time to turn their performance around, or to further the
disciplinary process with an initial written warning.

The employee should be informed in writing of the meeting’s decision, their ability to
appeal, any applicable deadlines, and the conclusion (which may include issuing a
written warning, either a first or final warning, depending on the point in the procedure).

4. Issue the written warning

Notify the employee in writing that they are being placed on a written warning due to
poor performance. State the duration of the written warning and the targets which the
employee is expected to meet during that time (must be specific and realistic). Inform
the employee that a performance review will take place towards the end of the warning’s
lifespan.

If the employee’s performance has not improved in line with agreed targets by the next
performance review, the employer may initiate a second or final written warning,
following the guidelines outlined above. Should the final written warning expire with no
improvement, the employer can issue notice of the employee’s dismissal.

Alternative employment or redeployment

Before firing an employee, the company should look for other job opportunities or
redeployment. It might not always be possible (depending on openings, etc.), but the
employer should be able to demonstrate that they have thought about it and talked to
the employee about it.

Always provide an appeals option if the employer decides to terminate an employee

(with or without compensation in place of notice, as appropriate). This ought to be
addressed to a person with at least equal rank to that of the original decision-maker.

The employee should be notified and given written confirmation as soon as feasible
after a performance dismissal hearing if the employer thinks that the employee’s
performance justifies termination.
The judgement should be appealable by the employee.
If paying the employee in place of notice makes sense, the employer should take it into
account.

Case law

In Fallahi v TWI Limited, this ruling underlines that tribunals often won’t question
warnings sent as part of a performance management procedure before a dismissal. A
worker who wants to contest a performance termination based on a prior warning will
have a tough time proving that it was “manifestly incorrect.”

Even in cases where a warning during a capacity process is obviously improper, the
final dismissal may nevertheless be fair. This is due to the possibility that the employer
did not give the warning much weight when deciding to fire the employee. Instead, the
failure to improve after the post-warning will be the basis for the dismissal decision.

However, it would be smart for employers to make sure that internal capability
processes are followed and that warnings are only given in the proper circumstances.
Due to the employee’s lack of improvement, the employer in this instance lost patience
and decided to discontinue both the informal and formal review procedures. An early
start to a formal performance management procedure far earlier in the job relationship
would have been a preferable course of action. This may have also meant that the
individual was fired before obtaining protection from unfair dismissal, giving the
business more leeway to execute their internal procedure strictly.

Poor performance dismissal key considerations

 Whether an employer can prove objectively that a worker isn’t performing up to

par and isn’t being treated differently from other workers
 Whether or not the company has communicated to the worker any performance
concerns it has found and what needs to be done to improve
 Whether or not the employee has had a fair opportunity to address any faults
found, as well as how long they have had to do so.
 Whether or not the business has given the employee enough guidance and
training to help them get better
 Whether or not the worker was informed of the negative effects of their poor
performance
 Occasionally, the employer’s consideration of alternative employment