Q: I have spoken to an employee twice asking her to improve on her daily tasks, which she has failed to do. She's only been with us three months. What's the next move?
Jun 21 2010
Answered by: Peter Done Ask a question
It depends what you want to do and what risks you are prepared to take.
An employee normally requires a year’s service before they have the right to bring an unfair dismissal claim. So, the chances are that you could get away with just calling her into your office, reminding her of your previous conversations and sacking her. She would be entitled to statutory minimum notice of one week (or contractual notice if greater). This can normally be paid in lieu, together with any accrued untaken annual leave, if you want her to leave straight away. However, depending on the circumstances, the above approach is not without some risks.
The employee may be able to bring a breach of contract claim if her contract entitles her to be dealt with in accordance with particular procedures regardless of her short length of service. However, even where successful, such a claim rarely results in more than a few weeks’ pay being awarded as damages. If you don’t wish to follow any such contractual procedures, you may wish to put some money aside just in case of a claim.
More importantly, there are also an increasing number of automatically unfair reasons for dismissal where the one year qualification rule is disapplied. If your employee can convince a tribunal that the real reason you dismissed her was not her poor performance but one of these unacceptable reasons then you will be liable to pay compensation for unfair dismissal which could be a substantial sum. Automatically, unfair reasons for dismissal include: pregnancy, raising a health and safety complaint, whistle-blowing, trade union membership or activities, national minimum wage and assertion of various statutory rights. However, there are many others and it is always worth taking specific advice to help you assess the risks.
Employees can also bring discrimination claims regardless of length of service. If you wish to minimise these risks, then in some circumstances, it can be worthwhile to hold a proper disciplinary hearing with the employee to see what she has to say for herself before making a final decision to dismiss.
If the employee, while not perfect, is not so bad that you are considering dismissal at this point, then it may be worthwhile formalising your previous conversations with her by embarking on a full disciplinary procedure. The outcome of which may be a first and final, ‘improve or else’ letter, so that she can’t later claim that she didn’t know that her job was on the line.
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