Disciplinaries & Performance Management: a guide for employees

Specialist employment lawyers supporting you with redundancies and restructuring

Finding yourself in a situation where your employer is questioning your performance or your conduct is a very stressful and daunting experience. We can help and support you in seeking the quickest and most favourable outcome possible. Although the best way to get advice on your individual situation is to make an appointment to come and see us, we thought it would be helpful to set out some of the basics here.  

What can I expect?

The process that your employer will use will depend both on the type of conduct that is causing concern, and also on the size and administrative resources of the organisation.

Think about an employee who has got into a fight and punched a colleague in front of many witnesses: they might well be dismissed after a single meeting. In contrast, an employee who is failing to meeting sales targets (perhaps because of issues outside work) might have many meetings and several warnings before eventually being dismissed. From start to finish this second kind of process could take months.

The one thing in common is that, almost always, there will be a process. You can expect to get further information about what the process will involve from your employer’s disciplinary or performance management policy and also from the letters that they are likely to send you.

What rights do I have?

If you receive a formal warning or are dismissed, you should have the right to appeal to a more senior manager than the one who gave you the warning.

If you are dismissed then, provided you have been working for the same employer for more than two years, you may be able to bring an unfair dismissal claim. Many employers would rather agree a Settlement Agreement with you rather than risk the cost and hassle associated with an unfair dismissal claim. If you have been dismissed, or are involved in a process where your job is at risk, then a Settlement Agreement is often an attractive resolution from the perspective of both sides.

If you do have two years’ service then your employer can only dismiss you fairly by relying on a specific reason set out in law. The legally acceptable reasons include poor conduct and poor performance (usually classed as ‘capability’ in legal terms), but in each case the employer also has to follow a fair procedure to comply with the law.

Misconduct dismissals

Where the reason for dismissal is conduct the dismissal will only be fair if the following tests are satisfied:

  • Your employers genuinely believes that you’ve committed the misconduct in question;
  • The belief is reasonable;
  • They have reached the belief following a reasonable investigation;
  • The sanction of dismissal is appropriate

Your employer does not need to conduct a forensic investigation of the type that the police might be expected to conduct; it simply has to have good reason to believe that you are responsible and to have taken reasonable steps to investigate. Depending on the type of misconduct involved, this will usually involve taking statements from any relevant witnesses and giving you the chance to see the statements and respond to them.

Where the alleged misconduct is very serious it will be classed as ‘gross misconduct’ and your employer will be entitled to dismiss you even where you don’t have any previous disciplinary warnings, and without paying you notice. Where the misconduct is less serious then the fairness principle will usually require that you are issued with a number of warnings and given an opportunity to address the problem before a dismissal.

Performance dismissal

When the alleged reason for dismissal is performance your employer will usually have to demonstrate that the problems with your performance have been brought to your attention and you have been given ample opportunity to improve. Typically, this might be through an appraisal programme and/or a performance improvement programme. Many employees are able to use this opportunity to reach the required performance levels, or to persuade the employer to address and underlying issue, such as a ned for training or a difficult manager. For other employees, it can become clear that the end result is likely to be a dismissal. In such circumstances, we are often able to help employees negotiate a favourable exit through a Settlement Agreement.

Dismissal hearing

In both misconduct and performance cases, if you reach the point where dismissal is in prospect you can expect to be invited to a formal meeting . You are entitled to be accompanied at this meeting by a colleague or trade union representative (in certain cases you may be able to request a representative outside these categories). You may be informed of the outcome on the day or in writing afterwards, but in either case you should be offered the opportunity to appeal. Please note if you have less than two years’ service your employer may not adopt a formal process as you do not have the right to claim unfair dismissal.

What next?

If you are considering any employment law claim it is important to act quickly as legal claims in this field are subject to short time limits. Generally, you will have to act within three months of the matter you want to complain about (dismissal, issue of warning, etc.) and it is important to get legal advice and consider your options as early as possible.

We’re there for you

Being dismissed can be a daunting and very stressful situation.  We’re happy to help you through it, wherever there is a need for useful legal support.

So give us a call on 0117 325 0526 or get in touch and let’s discuss how we can help you.