Dismissing Incompetent Employees
The main risk involved in dismissing an incompetent employee is losing a claim for unfair dismissal and having to pay an award of compensation for loss of earnings of up to £63,000. This is generally only a risk where employees have been employed for at least 12 months.
In order to justify the dismissal of an under performing employee, the business will need to show that they honestly and reasonably believed that the employee was failing to meet established standards. It is generally accepted in employment law that businesses are entitled to introduce rigorous standards of performance provided that they are not unachievable and provided that they are consistently applied. Many businesses will adopt standards in the form of sales targets or productivity requirements.
Assuming that an employee has failed to meet established standards, the business will still be required to follow a fair procedure before dismissal. This will generally include giving a formal written warning to the employee and then a final written warning. The employee needs to be given an opportunity to improve and their performance needs to be monitored. Although there is no strict duty to help the employee, businesses should act reasonably in responding to requests for help. There is a specific duty to make reasonable adjustments if the employee concerned suffers from a disability.
Assuming that there is no improvement following a final warning, then the employer can proceed with dismissal. However, it is essential that the employer invites the employee to attend a formal disciplinary meeting in writing and then holds the meeting before dismissal and gives the employee an opportunity to appeal against dismissal.
In reality, the process of dismissing an incompetent employee often takes some considerable time and difficulties often arise. It is not unusual for employees to go off sick (for example with stress) when subjected to disciplinary warnings and it is also common for employees to allege that they are being victimised, bullied or harassed by the person taking the disciplinary action. In all the circumstances, businesses sometimes try to avoid the need for protracted disciplinary procedures and this is done in two ways.
The first alternative is for the employer to approach the employee and attempt to reach a negotiated settlement under which their employment is ended and they receive a sum of money. This kind of settlement will need to be reached through a legally binding “compromise agreement”. The employer will approach the employee prior to disciplinary proceedings and suggest that they may wish to accept a settlement rather than be subjected to disciplinary procedures that may result in their dismissal. It is essential that employers never suggest that the dismissal of an employee is inevitable.
The second alternative to disciplinary procedures is for the employee to be made redundant. Although redundancy is an entirely separate ground for dismissal, businesses sometimes make a judgement that they will not replace an under performing employee. If the employee is not to be replaced then there may be a redundancy situation. The employer will need to follow a fair redundancy process and adopt a selection criteria for determining who will be made redundant. The selection criteria will commonly involve various performance indicators under which an under performing employee is likely to be selected.
For further information about performance management issues and the seminar programme contact Paul Archer at Lemon & Co Solicitors on 01793 527141.
October 2008
This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Paul Archer or Lauren Harkin on 01793 527141 or alternatively by email on Paul.Archer@lemon-co.co.uk or Lauren.Harkin@lemon-co.co.uk.
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<p><strong><a href="http://www.lemon-co.co.uk/article_dismissing-incompetent-employees.php">Dismissing Incompetent Employees</a></strong><br />
The main risk involved in dismissing an incompetent employees is losing a claim for unfair dismissal and having to pay an award of compensation for loss of earnings of up to £53,500. This is generally only a risk where employees have been employed for at least 12 months...</p>
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