Whilst it may be uncomfortable and unpleasant to have to confront poor performance, ongoing performance issues should be identified and dealt with promptly and fairly, usually by the employee’s line manager. Performance issues may become more entrenched if not dealt with as they arise and will be much more difficult to manage later on.  

What process should employers follow to address this?

The first stage of the process will usually be to hold an informal investigation meeting with the employee to establish the reasons for the poor performance, so that the employer can decide on the appropriate action to take. The manager should invite the employee to suggest the reasons for the under-performance and identify any further training or support required. The manager should keep notes of this meeting.   

Where it is identified that the reason for the poor performance is due to misconduct, such as a negative attitude or laziness, or carelessness/negligence, rather than a lack of capability, the employee should be taken through the disciplinary procedure, unless it is low risk to dismiss the employee as a "short-serving" employee in the first instance. 

Where the employee is keen and willing to work but the issue is due to an identified lack of support, training or competency/ability, a capability procedure or performance improvement plan will be more appropriate. This is the case where the employer has a separate procedure for this, otherwise the disciplinary procedure should be followed with warnings given for performance, rather than misconduct. 

This procedure will involve inviting the employee to attend a number of formal meetings where the performance remains unsatisfactory, each of which may result in a written performance warning and a timescale given for improvement alongside agreed objectives. Where the employee’s performance fails to improve within a reasonable period of time, this may ultimately result in their dismissal. 

In any event, we always advise that employers obtain legal advice whenever they are faced with this scenario. 

Markel Law

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