How to deal with an under-performing employee

Understanding your legal rights as an employer when dealing with a member of staff who just isn’t pulling their weight is one of the less palatable aspects of business leadership. Not only is it an awkward and confrontational situation to manage, but employers are also aware that they don’t want to face any legal action from the employee should they feel unfairly dismissed

This is an edited version of an article that originally appeared on Business Advice

Here’s the advice of two legal and HR experts on what to do when faced with this tricky situation.

David Bradley, head of employment law and chairman, Ramsdens Solicitors

Firstly, a reasonable conversation is likely to uncover whether the employee has a problem or whether the employee is the problem.


  • Find out the facts – is this a performance or conduct issue, or both?
  • Is there an underlying health issue – be mindful of disability issues.
  • Be consistent in the application of your knowledge – compare the situation with other similar employees.
  • Examine the contract, and any relevant policy, and apply them.
  • Establish whether the employee has more than two years’ service.

Do not

  • Jump to conclusions, or rely on the views of persons who may have an ‘axe to grind’.
  • Ignore special circumstances that may lead to a claim for discrimination.
  • Leave matters hoping they will go away.

Sue Andrews, HR and business consultant, Kis Finance

If informally addressing concerns has no impact then move to your formal performance procedure. Basing these next moves on the ACAS Code of Practice will reduce the risk of an unfair dismissal claim.


  • Hold an investigatory meeting to explore why their performance is falling short of standards.
  • Check they have a clear job description and have received all relevant training before taking any further action.
  • Invite them, if appropriate, to a disciplinary hearing – where the usual rights for the employee to be accompanied, and to raise an appeal against the outcome, still apply.

Also, remember…

It’s usual to commence with a written warning first, along with clear guidance on required improvements and expected timescales for this to be achieved. Ensure they understand that failure to improve could, ultimately, lead to their dismissal.

If their poor performance is damaging your organisation and you want to avoid a drawn-out process you could consider a Settlement Agreement to bring the matter to a swifter conclusion.

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