An employee, who has been working for his company for nine months, has not improved his performance despite previous warnings. What does the employer need to know before they decide to dismiss him? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
I have an employee who, in spite of previous verbal and written warnings on improvement of his work, has not improved in his work. I am now planning to terminate his employment by giving him a notice of one month as stipulated in his contract. I was planning to send an email followed by a hard copy of the letter by recorded delivery.
The employee has been working for us only for about nine months and is presently on a week’s holiday. Can I just go ahead and serve him the termination notice?
Believe you me, I have tried very hard to improve his ways of working but I am not prepared to put up with this any more. I really do not want an unfair dismissal claim because I have had one and I went through hell and lost! My other concern is that if I terminate the employment, do I need to give my reasons for termination or should I keep quiet about it in the email/letter?
I have sat down formally with the employee in question on points of concern but there were no witnesses from either side and no time frame was given on when and how to improve. I really do not want to give him any further opportunities to improve as I cannot see scope for improvements here. I don’t think there are any other issues I need to consider like sexual discrimination, age or disability, etc.
Legal advice:
Esther Smith, partner, Thomas Eggar
As the employee in question has less than one year’s service, you are safe to dismiss on notice in accordance with their contract. The exception to this would be if the reason for dismissal was linked to one of the ‘protected’ rights for which an employee can bring a claim for unfair dismissal without a year’s service. However, as the issues here appear to be performance related and have been repeatedly addressed with the employee, this does not appear to be an issue.
They have no statutory right to a written reason for dismissal, but as a matter of good practice (and to try to avoid any other claims being made) you should detail to the employee the reasons, in broad terms, why you have arrived at the decision to dismiss.
The employee is entitled to notice in accordance with his contract and payment in lieu of any accrued holiday not taken at the termination date. In terms of process, as the employee cannot enforce their rights under the statutory dismissal procedures unless they have an unfair dismissal claim, there is not really any great benefit in going through the procedure.
However, it is worth noting that a dismissal is only effective when it is communicated, so you may be better dismissing in person on this employee’s return to work following his holiday and then confirming this by letter. For the avoidance of doubt, you should confirm that termination is immediate and that payment in lieu of notice will be made.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
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Martin Brewer, partner and employment law specialist, Mills & Reeve
Yes you can go ahead and serve notice or, perhaps better, make a payment in lieu of notice. An employee with less that one years’ service cannot claim unfair dismissal unless there are exceptional circumstances (such as dismissal for health and safety reasons, asserting a statutory rights etc).
Just about the only thing you really need to be wary of is a claim for discrimination. This could only arise if the employee could point to a person of a different sex, race, etc, who was better treated in similar circumstances.
Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.
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