Helping employers to manage poor performance

Most employers need to resolve issues with a poorly performing employee in their business at some stage. The circumstances and the employees can vary widely but many of the underlying problems are the same. Now is a good time to consider how you would handle this in your organisation should the need arise.

At the moment, employers have the luxury of dismissing an employee who has been with them for less than two years, without needing to follow stringent processes. This is set to change during 2027, when the two-year period will reduce to six months, in line with the Employment Rights Act 2025.

What to consider when poor performance is an issue

The starting point is to work out what the reasons are for the poor performance. Commonly reported reasons include:

• Lack of innate ability
• Lack of understanding of the role or the tasks that are required to be completed
• Failing to hit sales or other performance targets
• Lack of concentration or motivation, or frequent absences
• Problems engaging appropriately with other team members.

Whichever of these applies, there is another set of factors that needs to be considered. In particular:

• Are there any disability or other protected characteristic factors which might leave the business open to discrimination claims when you take steps to address the poor performance issues?
• Are there potentially any health and safety considerations?

What steps to take, and when, to address poor performance

Lack of innate ability

If basic ability is the issue, and is not something that can be corrected with appropriate training, then hopefully this can be picked up and dealt with during the employee’s initial probation period. If you have any employees where you feel this is a problem and that, even with appropriate support, performance will not improve, if they have less than two years’ service you may wish to bite the bullet and address the issues before the change in the law comes in and the two years is reduced to six months. Do remember to ensure there are no discrimination issues to consider first, however.

Lack of understanding

If there is a lack of understanding, which is not down purely to lack of ability, does the problem stem from a lack of training? If so, you will need to address this alongside any Performance Improvement Plan (PIP) that you choose to implement.

Failing to hit sales or other performance targets

Before starting down any disciplinary route in relation to missed targets, make sure that the targets set can be justified in relation to the targets given to other members of the team.

Lack of concentration or motivation, or frequent absences

If one or more of these are causing the poor performance, then the starting point will probably be to establish whether there are any health or disability concerns that are having an impact. If so, then suitable support will need to be put in to help overcome these. If not, then you may choose to go down the PIP route. If the employee’s sickness record is a concern, this requires treating carefully but you should take steps to address it. Do you have a sickness policy? Do you hold return to work meetings after people return from sickness absence? If not, you should protect your business by doing this.

Problems engaging effectively with other team members

There might be a whole host of reasons for this, and you will need to establish the underlying cause. While the problem may lie with the poor performing employee, sometimes it is the result of some form of bullying or sexual or racial harassment being meted out by someone else in the organisation. It is important that you find out what is actually happening before deciding what steps to take.

What documentation should employers’ keep?

Generally, the answer is ‘the more the better’. However, that does come with some words of caution. It is important to keep thorough and appropriate records of sickness, training, appraisals, performance management programmes and so on. Managers do, however, need to have appropriate conversations and record these. For instance, it is all too common for appraisal paperwork to give a glowing picture of an employee who is actually not performing properly and that then makes it harder to address the issue. Likewise, remember when putting things in writing, that emails between members of the management team might end up needing to be shared as part of a subject access request in the future.

The Settlement Agreement option

Exiting very recent recruits from your business should not currently be an issue, unless this is complicated by potential discrimination issues. For those with more than two years’ service (or more than six months’ service from 2027), it is likely to be more time consuming. This is the reason that many employers opt to go down the route of a ‘protected conversation’ followed by a Settlement Agreement.

How Fraser Dawbarns can help businesses with employee poor performance issues?

Our Employment Law team works with a broad range of businesses, mainly in Cambridgeshire and Norfolk. Our solicitors can assist managers to address performance issues, both by ensuring that appropriate policies and documentation are in place at the start, and by helping to implement the steps needed deal with performance concerns that arise later.

For individual advice please contact us on 01353 383483, email davidgreen@fraserdawbarns.com, kyleconnor@fraserdawbarns.com or natasha.galvin@fraserdawbarns.com or complete one of our website contact forms and a lawyer will be in touch.

How To Contact Us:

To contact a member of our team, you can fill in our online enquiry form, email info@fraserdawbarns.com, or call your nearest office below. If you’d like to speak to a member of our team at one of our offices across Norfolk and Cambridgeshire, visit our offices page.

Wisbech: 01945 461456

March: 01354 602880

King’s Lynn: 01553 666600

Ely: 01353 383483

Downham Market: 01366 383171

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP is always happy to provide such advice.