As employment solicitors this is one of the commonest issues we deal with in employment law claims. There is nothing worse for an employer than an unproductive employee and many employers worry as to how to manage the situation or dismiss the employee. To avoid an employment law claim when dealing with poor performance the key is to ensure you have the correct and fair procedure and to act reasonably.
All employees, no matter how senior, should be subject to regular appraisals (especially during the probation period). Once you are aware you have a problem, you need to move fast and issue an early warning (preferably in writing so you have the evidence). The first early warning can be informal - you can tell the employee you have noticed they are not doing so well and suggest appropriate targets to achieve without instigating a disciplinary procedure. Appropriate targets should be specific, realistic and within a practical time frame. At this stage, you also need to think if the employee needs some help - in the form of additional supervision, training or mentoring. Some of this will depend on the seniority of the employee and the experience they are meant to have had. For example, a managing director or senior employee can expect less time to improve and less assistance. It would also be more appropriate to miss out the informal stage and move straight into a disciplinary procedure, as their performance is more likely to badly hit the business.
If the informal approach does not seem to be working, you should move on and instigate a disciplinary procedure, following the same rules of telling the employee exactly where they are going wrong and setting realistic objectives within an appropriate timeframe. It is never quick to dismiss someone for performance issues, which can be frustrating for the employer if they feel no progress is being made. It may be possible to offer a compromise agreement but this issue is fraught with difficulties and can lead to a claim for constructive dismissal, so you should always seek specialized advice before doing so.
As employment solicitors, we are sometimes asked if it is possible to move someone to a different role. Again this can be a very difficult area, as if someone is essentially asked to change their employment contract; this is a ground for claiming unfair constructive dismissal. It can be done but only if you can show it was a reasonable response to make, taking into account all of the circumstances.
Another common question is whether selection for redundancy can be on the grounds of performance. The short answer is yes, but again you should be able to show regular appraisals.