Dismissed for Poor Performance: What Are Your Rights?

With the recent high-profile sacking of former Manchester United boss Erik Ten Hag, dismissal for “poor performance” has garnered attention. Whether on the pitch or in the workplace, underperformance can put anyone’s job at risk. 

For employees concerned about job security due to performance issues, knowing their rights is essential. This article explores the legality of being dismissed due to capability, detailing what’s allowed and what may constitute unfair dismissal.

If you have any employment law related questions or believe your rights have been breached, get in touch now. Redmans Solicitors are sector specialists, and following a quick chat, we could advise on your possible next steps. Should you have an eligible employment tribunal claim, we could also assist you through the process.

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Can You Get Fired for Underperformance?

What Is Poor Performance?

In employment law, “poor performance” refers to an employee consistently failing to meet the standards expected in their role. This may be due to a lack of skill, inadequate training, or other capability issues that affect job responsibilities. Employers often address such issues through a process called performance management, aiming to help the employee meet expected standards.

The Legal Framework for Capability Dismissals

UK employment law distinguishes between dismissals based on “capability” and those due to “conduct.” A capability dismissal relates to performance issues when an employee cannot meet job requirements despite support and training. In contrast, misconduct relates to behavioural issues, like violating workplace rules. 

Under the Employment Rights Act 1996, poor performance is one of the five fair reasons for dismissal. That said, employers must follow a fair procedure and provide adequate opportunities for employees to improve first.

Fair Procedure for Dismissal

Employers Must Follow a Fair Procedure

UK law mandates that employers deal with poor performance fairly before dismissing them. A fair procedure allows the employee a chance to improve and minimises the risk of unfair dismissal employment tribunal claims. Even if a lack of capability is evident, employers must demonstrate that they took reasonable steps to address the performance issues.

How to Fairly Deal with Poor Performance

When employers identify issues with an employee’s performance, they must follow specific steps to avoid liability. Adhering to their own policies and ACAS guidelines is essential. 

Often, the process starts with an informal conversation. Here, the employer would address any current performance issues and outline the company’s expectations. If issues persist, the employer may formally undertake a performance management process, where clear, measurable targets are set, and any necessary support is agreed upon.

Subsequently, there should be a monitoring period, which would give the employee time to improve. Regular reviews should take place to track the employee’s progress, and any necessary adjustments should be made to continue their development.

However, if underperformance continues, the employer may issue a written warning. This should clearly identify the specific performance issues, the required standards and the potential repercussions of continued unimprovement.

If poor performance continues after the first written warning, a final written warning could be issued. This time, the employer may state that any further capability concerns could result in dismissal.

If the employee fails to perform to the expected standards after a reasonable period and with employer intervention, dismissal may finally occur. This should only come as a last resort and after the employer has considered alternative positions. If the employer proceeds with dismissal, they must offer the employee an opportunity to appeal.

By following such performance management steps, employers ensure they act fairly and transparently and reduce the risk of unfair dismissal claims.

Unfair Dismissal: What to Do

Rights to Challenge

Eligible employees who believe they’ve been unfairly dismissed due to poor performance may be entitled to make an employment tribunal claim. To bring an unfair dismissal claim, individuals must be legally classified as employees and have two years of continuous service.

When deciding whether a dismissal is fair, tribunals will consider several factors. Among other things, they will analyse if the employer provided adequate support, whether the employee was allowed a reasonable timeframe for improvement, and how the dismissal procedure was handled.

What Constitutes Unfair Dismissal for Poor Performance?

If an employer dismisses an employee without giving adequate support, training, or reasonable time to improve, it may be considered unfair. Failure to follow a fair procedure, such as skipping warning stages or not meeting with the employee before making a decision, may also lead to a tribunal finding in favour of the individual.

Steps to Take If You Believe You Were Unfairly Dismissed

If an employee believes they’ve been unfairly dismissed, there are several steps they should take. Initially, it’s wise to attempt to resolve the matter internally, either via an informal chat or a formal grievance. Choosing which avenue to pursue will usually depend on the seriousness of the issue.

However, if internal measures prove unsuccessful, the employee may want to take their case to court. If this is the case, the employee should:

  1. Document the Process: Keep records of all communications, meetings, and performance reviews. Documentation can help evidence one’s case, should it go to a hearing. It’s important to note that such evidence could also prove useful in internal processes.
  2. Remain Compliant: Before an employment tribunal claim can be pursued, ACAS early conciliation must be undertaken. Furthermore, specific eligibility criteria must be met. If the employee fails to satisfy either of these requirements, they may be unable to pursue legal action.
  3. Consult a Legal Expert: Consulting an employment expert before making a claim can prove beneficial. Law can be complex, and such experts can review an individual’s situation and simplify the process. 

Get Help From Redmans

Facing a dismissal due to poor performance can be challenging and emotional. However, understanding your rights and the fair procedure employers must follow can help you take the right steps if you believe you’ve been unfairly treated. 

For those navigating these difficult circumstances, legal support can be invaluable. At Redmans Solicitors, our employment law specialists are here to guide you, offering advice on capability concerns, unfair dismissal, and all aspects of employment tribunal claims.

If you have any questions or want our help, please don’t hesitate to reach out. You can get started on your journey with us today by: