We believe most employers know this is a risky thing to do but we still see it happening.
Where an employee has over two years service, dismissing someone in these circumstances, i.e. without first giving them the opportunity to show improvement, will result in the dismissal being unfair.
As in cases of misconduct, employers should always follow a fair procedure before considering dismissal; in most cases of underperformance employers will need to show they have issued the employee with a series of warnings through a disciplinary process before they can justify ending the employment relationship.
As part of this process it is vital that employers set clear targets and objectives so that employees know exactly what is expected of them. It is important that employers establish the reason why an employee believes they are underperforming and to try to establish whether there is any assistance or further training that could be offered to help them improve.
Where an employee is just generally unhappy in the role or even agrees that they are not going to be able to make the improvements necessary, there may be the option of having a discussion about bringing the contract to an end by mutual agreement under a settlement agreement. This can be a quick and safe way to bring about the end of the employment relationship without going through a full capability process as set out above.