With a busy work schedule, it might seem better, quicker, easier, to skirt around a performance issue with an employee. Broad, general comments, perhaps softened with a compliment or two, might avoid that difficult conversation about the specific issue you really need to raise.
Vague feedback may leave that employee unclear what the issue is. At best, the performance issue(s) may take longer to address or remain unresolved.
Raising performance issues informally
Whilst its often appropriate to initially raise performance issues informally, escalating these to a formalised status or performance improvement plan will come as an unwelcome surprise if the precise issues have never been clearly raised with the employee.
If the performance does not improve and your business decide to dismiss, that dismissal could be considered unfair.
Employment tribunals and unfair dismissal claims
When considering the fairness of a dismissal, the Employment Tribunal will apply the test of whether the decision to terminate employment was within the range of reasonable responses. The Tribunal will also want to be satisfied that due process has been followed including the requirements of the ACAS Code of Practice and company policies and procedures.
In cases of capability, it will be rare for the employer to fairly dismiss for a one-off incident of poor performance. Employers will usually be expected to have given the employee a reasonable opportunity to meet the required standard, and that includes providing clarity about what needs to be addressed, and guidance and support to do so. Due process will also help understand any underlying issues (including health issues and/or disabilities) and obstacles that may need to be addressed:
- what is the issue?
- what does the employee’s job description say?
- how are they failing to fulfil their duties?
- what evidence is there of poor performance?
- can you give examples and explanation?
Clear feedback and structured performance management for employees not meeting the required standard will be more essential than ever – employees should know what’s expected of them and have the tools, training, guidance to achieve that for the benefit of the business and their personal and professional development
Changes to the Employment Rights Act
The Employment Rights Act 2025 has resulted in a raft of significant changes that will impact every employer. Whilst some of these changes have already come into force, from 1 January 2027, with the reduction of the qualifying period of employment to six months’ service, and removal of the cap on the compensatory award, businesses should be ensuring that line managers give clear and precise feedback to staff to help them meet their potential and minimise the risk of costly and time-consuming Tribunal claims.
Prudent employers will pay heed to the changes and navigate the new rules to avoid claims and promote positive work relations that help recruitment, retention and a driven, enthused workforce.
