There is an underperforming employee. They have been given lots of support and offers of training over the years. 

You’ve given them several opportunities to improve, including several performance improvement plans and have asked them what you can do to help them improve. The employee has agreed that they are indeed underperforming and that they know that their job is on the line. You invite them to a formal hearing and you warn them that one of the outcomes of the hearing could be dismissal. The employee is dismissed for poor performance. 

The employee brings an unfair dismissal claim. Surely, they lose? Wrong. 

The facts I’ve very briefly summarised are those of a recent Employment Tribunal decision in the case of A Briggs v The Trustees of the National Museums of Scotland. 

The Tribunal upheld the unfair dismissal claim because her employer had not issued her with a formal warning under their Poor Performance Policy before dismissing her. Whilst it seemed obvious that dismissal was on the cards, the Tribunal still found that the failure to issue a formal warning was a procedural defect that rendered the dismissal unfair (her compensation was reduced on the basis that had they given her a formal warning and further time to improve, she would have eventually been dismissed at a later point in any event).

Another really important point out of the judgment was that the manager that dismissed should have considered redeploying Ms Briggs to a suitable alternative role before considering dismissal. The manager said that she thought that redeployment was only something to be considered in cases of relationship breakdown. 

The Tribunal said that this was wrong. This particular point did not lead to the finding of unfair dismissal because in this particular case, the appeal manager did consider and rule out redeployment on the basis that Ms Briggs was not suitable for any of the vacancies they had at that time. 

As my colleague Anna Dabek pointed out in her blog about making the most of probationary periods, the upcoming legislative changes we are expecting from the Employment Rights Bill mean that it will be easier for more employees to present unfair dismissal claims. Not only will all employees have a day one right to protection from unfair dismissal, the time limit for making an unfair dismissal claim is going to be doubled from three months to six months. Now is the time to ensure that your Performance policies are fit for purpose and that your managers are trained on the process to be followed when managing underperforming employees. 

Key takeaways from the case I’d like to highlight:

• Even in the most obvious cases of underperformance where it seems that the writing is ‘on the wall’, always check your Performance/Capability policies, to see what they say about formal warnings and check if the process has been followed. If not, does that mean you can still fairly dismiss at that time?
• Consider redeployment in poor performance cases before dismissal. All roles are different and an employee might underperform in one role but be able to do a different one. 

If we can be of any assistance in reviewing policies or providing guidance and training, please just get in touch.