Dealing with challenging behaviour and poor performance

Apr 21, 2022

‘Can you make a poor performer redundant?’

If an individual is not performing well and you spoke to them on an informal basis about their poor performance. However, despite your request for an improvement, these have fallen on deaf ears.

What do you do?
1. spend more time trying to resolve the matter, with no guarantee of any sustained improvement or
2. sometimes a preferred solution would be to make them redundant and recruit a replacement.

What does the law say?
In employment law “redundancy” has a specific meaning and the Employment Rights Act 1996 defines it as being a dismissal of an employee which is wholly, or mainly, attributable to one of the following circumstances:

• the employer’s business has closed down or will be closing down
• the particular workplace or site, where the employee is based is closing down
• the requirement for employees to carry out work of a particular kind has ceased or diminished or is
expected to cease or diminish.

Therefore, if you were to use redundancy as the reason for dismissing a poorly performing employee, it won’t be a genuine redundancy situation – that’s because it doesn’t fall into one of the permissible categories above. Furthermore, if you recruited someone into the same or a similar role soon after, your real motive will be obvious, and you could end up with an unfair dismissal claim.
In this situation, the tribunal would go through your redundancy process with a fine-tooth comb and soon discover it wasn’t genuine.

This doesn’t mean that you can’t ever get rid of a poor performer – you just have to go through the correct processes.

Remember, before you trigger any formal procedure, it’s sensible to make the poor performer the subject of a performance improvement plan (PIP).

This is an informal yet structured framework that gives the employee a chance to improve to your satisfaction and avoid formal proceedings. It involves several stages including goal-setting, outlining exactly how you expect them to improve and how you’ll measure progress. Four to six weeks should usually be enough for an employee to show an improvement.

If they ultimately fail to come up to scratch, the PIP will be solid evidence of the problem and how you tried to help the employee to resolve it. Should this be the outcome, you can then trigger formal proceedings which will either be in the form of your disciplinary procedure (where the employee won’t do something) or your capability procedure (where the employee can’t do something).

You will need to have a valid reason for example disability, to extend the timeframe for improvement under the PIP.

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