He’s got to go!

I employ a Warehouse Operative (Matt) who just is not working out. He’s been with us for just over 2 years and has never really set the world on fire. He does an OK job, but he’s had a fair bit of absence, lateness and sometimes takes more smoke breaks than he should. I’ve had enough now and want to take on someone else that will work harder. What do I need to do to sack Matt?

 

First of all, as Matt has more than 2 years’ service, he is protected by law from being unfairly dismissed, so you need to follow a fair and reasonable process to minimise your risk of receiving an Employment Tribunal claim.

(Note that for employees with less than 2 years’ service, there is still a risk of an Employment Tribunal claim for discrimination, or automatically unfair reasons for dismissal such as for being a trade union member or for raising health and safety issues. Following a fair process will demonstrate a legitimate reason for dismissal and protect your reputation as an employer.)

A fair process to address an employee’s capability has a number of fundamental elements:

  • That the employee is invited, in writing, to a formal meeting to discuss their underperformance – specifying exactly what the issue is.
  • The employee is given reasonable notice of the meeting and what the potential consequences of the meeting may be (e.g. a formal warning or dismissal) so they may adequately prepare.
  • The employee has the right to be accompanied at that meeting by a colleague or trade union official.
  • Specific instances of under-performance are outlined in the meeting.
  • The employee has the opportunity to state their side of things at the formal meeting.
  • Any decision made at, or following, the meeting must be reasonable.
  • The employee has the right to appeal any decision such as a warning or dismissal given at the meeting.

These principles are included in the Acas Code of Practice on Discipline and Grievance. They are a benchmark of a fair process and if the Code of Practice is not followed, and the employee subsequently makes, and wins, an Employment Tribunal claim, the amount of compensation payable by the employer can be increased by up to 25%.

The key issue jumping out at me here is that there does not appear to have been any prior communication to Matt that he is underperforming. If his absence, lateness and additional breaks have been tolerated, he does not know he is doing the wrong thing. To dismiss him at first discussion is highly likely to be considered unfair.

If high levels of absence, lateness and additional breaks are taken by other employees, and Matt is just complying with normal practice, it would appear he is being singled out, and again a decision to dismiss is likely to be unfair.

You need to point out to Matt (and any other employee behaving consistently) that his performance is unacceptable; outline the impact it has on the business and your customers, and set clear and reasonable targets for improvement. In the first instance, this should be addressed informally and, if there is no improvement after a reasonable period, then you could consider a formal meeting as set out above. Any formal action taken should start at the lowest level, and escalate to the next level until ultimately reaching dismissal – only after giving opportunity and time to achieve the required improvement at each stage.

Before taking any informal or formal action you should explore with Matt whether there are any mitigating circumstances for his underperformance. If the absence or lateness has deteriorated more recently, then there may be something going on at home. It may be reasonable to consider temporary flexible working arrangements to enable Matt to deal with any issue at home.

It may be that he has not received adequate training to perform his full role. As an employer you have a responsibility to provide resources, e.g. equipment and training, to enable employees to perform. It would be unfair to reprimand an employee that is not fully equipped to perform their role.

Ultimately, it is much easier, less costly and less risky to turn around an underperforming employee than to dismiss and recruit a replacement. Have a look at your management practices to ensure employees are clear of their expectations, have the resources they need to do their job and receive regular and timely feedback on their performance.

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