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Sacking employees is like doing housework – Should unfair dismissal laws be scrapped?

October 26, 2011

Saying that it is too difficult to sack employees, is like saying it is too difficult to do your own housework!

… by that I mean, you can either put in the time and effort to get it done yourself (and for many of us the time and effort to get it done properly is too much to ask); or you can engage some experts (at cost) to get it done properly. There is always a risk that you might knock over that expensive vase, or the curtain rail might fall down, but does that stop you doing it?

The idea that we cannot sack bad workers in the UK is ridiculous. First of all, unfair dismissal rights do not kick in until someone has been working with you for 12 months (soon to be extended to 24 months); and secondly, even when they have been working with you for long enough, you can still manage, and ultimately dismiss them with they are not up to scratch.

The only reasons why poor performers stay in their jobs without being dealt with are that managers and organisations either cannot be bothered to deal with the matter; are reluctant to put resource towards dealing with it; or they simply don’t care about it.

This is where the public sector has real problems, not because they employ “slackers” or “coasters” as some people would suggest, but because identifying who is responsible or accountable for ensuring standards of performance is really very difficult… so many people slip through the net. That however is not to say that with strong management, even public sector organisations cannot get it right.

Private sector organisations really have no excuse at all. You would not sit back and accept poor performance from your suppliers, or non-payment from your customers and clients, so why the reluctance to take employees to task for poor performance. Use that first 12 months, and weed out the rubbish. After that use a robust performance improvement plan, which any decent HR professional would recommend.

There are so many myths floating around about this subject. This morning I heard a business owner (who shall remain nameless) on the radio  saying that unfair dismissal laws should be scrapped because of what employees think they can get away with. Her reasoning was completely illogical. Firstly, she said that she wouldn’t stand those sorts of employees in her business, which in fact supports the argument that with strong management you do not need to put up with poor performers (regardless of unfair dismissal laws).

Secondly, she recounted an anecdote about an employee who had attempted to steal a (paper) client list, and when her manager grabbed it off her, she pushed her manager to the ground. Presumably having been dismissed, the employee took the business to the employment tribunal, but she was unsuccessful?! To me, all that anecdote says is that there are some very bad employees out there, who really push the boundaries too far, or step over them. But the fact is that she was sacked, and she did not have legitimate unfair dismissal claim… so the right result in the end. It is a complete fallacy to think that she would not have taken her employer to the employment tribunal if there were no unfair dismissal laws, as she was clearly vexatious anyway and would simply have dressed it up as unlawful discrimination instead.

As I see it, poor performance generally arises in the following ways:

  • The employee has always been a poor performer – in which case, why on earth did you not use the probationary period, and the first year of their employment to get rid of them? Employees who are not performing by the time they have been with you 6-9 months are highly unlikely to ever make the grade. Don’t procrastinate. Bite the bullet; terminate their employment while you can do so safely. By not doing so, you risk giving the message that their level of performance is acceptable in your business, and that is when dismissal can be viewed as unfair (if you move the goal posts later);
  • The employee used to perform well, but performance has deteriorated – Subject to health/disability or personal issues that you would work through with them, you need to jump on this asap. So, as soon as performance drops below the required standard, you put in place targets and objectives that the employee must achieve; monitor them constantly, and review them regularly. Once the employee has had a reasonable opportunity to improve (which will depend on the circumstances) but has not done so, then you can take steps to remove them from the business fairly. Those who do improve will be given a warning that if standards drop in the future, their employment may be at risk.
  • The employee’s performance remains the same, but the standards required by the employer have changed – This is the most risky area, but is in reality the responsibility of the business. A plan to improve efficiency and performance, and end a legacy of complacency and poor performance brings with it cost and risk at many levels. That however is just part of the process and needs to be factored in at the outset. The cost is likely to be particularly high in unionised environments. There are situations where poor performance dismissals in these circumstances may be fair, but they will generally take longer. Most importantly, employees need to be given the opportunity to improve, because as far as they are concerned the goalposts will have moved. Often, the best way to deal with this is in fact with a wholesale restructure, involving new job descriptions, which may have higher standards attached to them.

Scrapping unfair dismissal laws really is not the answer here. Mangers need to take the initiative, and take responsibility for ensuring the performance of their staff. If they are satisfied with the performance, fine. If not, then it is time to take action… otherwise it is the manager them self who is performing poorly.

What are your views on the current debate? How have you used performance improvement plans to good effect in the future? What else do you think can be done? Please leave a comment to have your say.

  1. Agree for the most part – what employers do find frustrating is the process, and time and resource this takes. It’s important that employees are protected but in many situations, both employer and employee know that trust has broken down, and there is a standoff where the employer foes through various stages of disciplinaries, over a period of months, when both parties know the writing is on the wall.

  2. Thanks for your comment “EFRB”

    That is a good point, and there are many things about employment law which employers find frustrating.

    I totally agree with your second point too, although I think you are looking at days or weeks (rather than months) when trust has completely broken down.


  3. Thanks for pointing me to this and the rest of your blog.

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