How long should it take to sack a poor performer?

Teachers are in the news again, with allegations that it takes too long and is too difficult to dismiss poorly performing teachers. In the private sector, it is argued, incompetent employees can be given their marching orders much more easily, whereas in the public sector it can take up to a year to remove somebody.

So what are the grounds on which an employee may be fairly dismissed, and what should an employer do, faced with an employee who is failing to perform?

There are five potentially fair reasons for dismissal:

In the case of a poorly performing employee, the reason for dismissal would be “capability”, so you've successfully negotiated the first hurdle. So what next? Call the person into your office and say: “I’m sorry, Fred, your performance is not up to scratch, you’re fired”?

Not if you don’t want to end up in an Employment Tribunal accused of Unfair Dismissal! Having established a potentially fair reason for dismissal, you must now follow a fair procedure.

1. Gather evidence

The first step will be to gather evidence of Fred’s alleged underperformance. If he is a salesperson the evidence could be poor sales figures, an unacceptably low conversion rate, or a loss of customers to the competition. In other cases, it could be poor appraisals by his manager, complaints from customers or colleagues, or unacceptably high error rates.

If you don’t have such evidence, then you will need to start keeping records, reminding people of the required standards, comparing the performance of individuals in a fair and objective manner. Inadequate management practices will contribute to the time taken to dismiss a poor performer!

2. Establish the reasons

Assuming you have evidence which is unbiased and reliable, your next step will be to discuss your concerns about Fred’s performance with him and try to ascertain why his performance is not good enough.

• Does he even realise he is not making the grade? Is he clear about what he is supposed to be achieving? Have your expectations been properly explained to him?
• Has he received the necessary cooperation from his colleagues to enable him to achieve the results you need? It would be wrong to dismiss Fred for not delivering his outputs, if the problem lies with somebody else who is not giving Fred the inputs he needs!
• Has he been promoted beyond his level of competence? In many instances, somebody who was doing very well in a technical role is promoted to a supervisory role and fails to make the transition successfully. 
• Maybe the job has changed in some way, such as the introduction of a computerised system, and he has failed to adapt.
• Perhaps his health has started to fail in ways that impact upon his ability to do the job, e.g. a loss of manual dexterity or mobility.

3. Consider options for improvement

Depending on the reason for the underperformance, it may or may not be feasible to help Fred get up to speed again.

• If he hasn’t got to grips with the new computer system, then additional training may be all it takes to get him back on track.
• If he has been over-promoted, maybe he needs some management development support, or perhaps it's possible to offer him a return to the previous role which does play to his strengths.
• If there is a health issue, maybe there are medical interventions that could help alleviate the symptoms so that he can resume making a valuable contribution to the business. And if the medical condition amounts to a disability, you will be under an obligation to make reasonable adjustments to enable him to carry on working.  

Two or three meetings may be required to establish the facts, discuss the options and review the improvements made.

4. Dismiss

If, having explored all the options, none of them is feasible, or if they fail to bring his performance up to standard within a reasonable amount of time, then dismissal will be fair and justifiable.

So, as with all dismissals, some ground work will be required and you should not jump to conclusions without examining the evidence and listening to what Fred has to say. Natural justice (as well as employment law) demands that, except in very rare and extreme cases, a person should be given a chance to explain and make efforts to improve, before their livelihood is taken away.

How long should all this take? As long as a year? Well, to some extent that will depend upon you – how good your records are, how clear your instructions, how competent your managers. Sometimes, if the battle is not being won the fault lies not with the foot soldiers but with the generals. It probably won’t take anything like as long as a year, but dismissal should always be the final resort, not a knee-jerk reaction.