Letting go of a poor performer can be the hardest decision you have ever made
It’s not easy to let go of a poor performer. But it can be done. Here in the UK, there are certain guidelines and legislation we have to observe. After all, there can be few more serious decisions than having to take away someone’s livelihood. Here I describe the 6 steps you are advised to take when you have decided to terminate your poor performer.
Terminating your poor performer is a last resort
Terminating your contract with an employee is very much a last resort. The law around the dismissal of an employee is fairly straightforward. It can get complex depending on the issues involved.
Terminating a contract with a poor performer is construed as a “fair dismissal” under current UK employment law. However, where many employers become unstuck is the test of “acting reasonably”. If you follow the steps in the article on how to manage a poor performer, and also make sure you have followed ACAS guidance; and have been respectful and objective with your employee, you are more than likely to have acted reasonably. The legislation says employees can’t claim unfair dismissal unless they have been employed for at least two years.
While this is helpful for employers. It is a bit of a red herring when deciding whether or not to terminate an employee. The fact that an employee might not have any right to appeal a decision to terminate does not mean an employer should not still act reasonably for ethical and reputational purposes.
In certain circumstances, you may wish to negotiate a settlement agreement. This can be introduced at any stage in the proceedings.
Six steps to letting go of your poor performer
Once you have gotten to the point where you have supported your employee in every way, you can help them to improve their performance, and you know the time has come to let them go, there are some basic steps to take.
1. Have necessary documentation
You must have all documentation to hand and make sure that you have properly followed company policies and at a minimum the ACAS Code of Practice on dismissals. Check over to make sure it is all in order. If you have any doubts do seek legal advice from an employment lawyer.
2. Understand the risks
Even if you are tight on your procedures, there may still be some risk if the employee does take you to an employment tribunal. Understanding the risks means you are prepared for what might happen. Risks might include financial penalties and/or damage to reputation. Again, if you don’t understand the risks then do seek advice from a good employment lawyer.
3. Inform your poor performer
You must inform the employee that you have decided to terminate their employment as set out in the ACAS Code of Practice. They are entitled to be represented at that meeting. While the employee may be surprised you have decided to terminate. The reason and the facts around their poor performance should be well known to them. Some time will have been spent working with you to improve their standards.
4. Consider inviting them to resign
Depending on the circumstances, you may wish to invite the employee to resign. This lets them save their reputation, and increase their chances of gaining more suitable employment, which is important especially if they have simply been in the wrong job.
5. Consider pursuing a settlement agreement
You may wish to pursue a settlement agreement, at this late stage, if there are disputes arising from the process of managing performance.
6. Give formal notice in writing
You might want to give formal notice, in writing, of their dismissal. They can then work out their notice. You may ask them to leave immediately, and pay them instead of notice, but generally only if such a provision is made in the contract of employment.
Terminating someone’s employment is a daunting task, and certainly not one which should be taken lightly. However, sometimes it is necessary because the consequences of inappropriately continuing employment can have far-reaching effects on your business and your team.
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