It’s so easy for the employer to get this wrong.
And when employers make mistakes, they can be costly.
Unless there has been a fundamental breach of the employment contract by gross misconduct or dishonesty on the part of the employee, warnings are essential to show fair procedures were followed.
However, it has been held in some cases that the inadequacy of performance was so bad that warnings would be ineffective.
There is no set format for a warning but the following principles must be adhered to:
- It should be clear and unequivocal; a broad statement or large hint will not suffice
- The cause of the problem should me made clear to the employee, eg competence, conduct etc.
- The consequences for the employee should be spelt out if the warning is not heeded eg that her job is in jeopardy.
The employee must also be given time and opportunity to improve.
Warnings should lapse or be expunged from the record after a certain period of time and the Employment Appeals Tribunal has held that warnings cannot remain indefinitely on an employee’s record.
Performance Related Problems
An employer seeking to justify the dismissal of an employee because of poor performance should be able to do the following:
- Explain how the problem came to light, especially if the employee is in the job for a good period of time
- Show that he investigated why performance is not up to scratch-it is not sufficient to merely show that performance was inadequate
- Clearly warn the employee that his performance is falling short
- Counsel the employee as to the need to improve and the assistance offered to help with this
- Monitor the response to the warning
- If there is no improvement, show that they investigated why there was no improvement
- Give a final warning that is clear and unequivocal setting out what the problem was, the consequences of failing to meet the required standard and when the consequences would be likely to result
- Show evidence of the failure to meet the standard of the final warning and provide evidence to the employee giving him an opportunity to respond and make a case for his retention in employment.
If targets are used to measure the employee’s performance and work, the employee must be given sufficient time to improve and warned as to the consequences of failing to reach the target.
In addition, where an employee meets the target but falls back to an old unacceptable level, the EAT has held on occasion that the procedure should revert to the 1st stage of the warning procedure.
The EAT has also held that unreasonable targets leading to dismissal can amount to unfair dismissal.