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The Ugly Game: Performance Related Sackings

Tuesday, 27 May 2014

David Moyes is hardly the first football manager to face the boot for lacklustre team performance and certainly won’t be the last. Needless to say, football managers are not the only people that face sackings for their perceived failures or the failures of the wider organisation; the practice is common in all walks of life.

Although the sacking of underperforming football managers attracts huge amounts of publicity and probably large doses of humiliation, in typical work environments staff are normally managed out in a more dignified manner.

Despite the perception, it is important to stress that that even high profile performance-related dismissals must be carried out properly, fairly and in accordance with due process to avoid problems.

Performance and Unfair Dismissal

Employees that started work after 6 April 2012 must have been employed for a minimum of two years to bring an unfair dismissal claim. Employers therefore have a decent amount of time to assess the capability and motivation of a given employee before committing to them for the longer term.

Circumstances can change of course as employees become settled – boredom, lack of motivation and other issues can all lead to performance failures later on. Once employees have acquired unfair dismissal rights, employers must follow specific procedures to manage out underperforming staff.

Additionally, compliance with the ACAS Code of Practice on Disciplinary and Grievance matters (ACAS Code) is a good way to reduce the risks of dismissal claims.

Performance Related Procedures

Performance management inherently requires a degree of analysis by the employer. To use this as the basis for removing underperforming employees requires a systematic approach.

Employees employed with particular performance requirements in mind should have their job role clearly defined in their employment contract. The way their performance will be managed should also be set out in their contract.

Once employees have begun work, regular appraisals can be used to measure performance against expectations. Measurement should be applied consistently to employees with similar roles.

If the employee falls short of expectations then several steps will need to be taken before they can be dismissed.

The Performance Related Dismissal Process

Employees that have a previously good track record may suffer a period of underperformance for a variety of reasons. It therefore makes sense for both employer and employee that the first step on the path to dismissal is to inform the employee of their shortcomings and give them a chance to improve within a reasonable timescale. Support and training should be provided.

The employee should be monitored closely according to consistently applied criteria and, if they continue to underperform during the specified period, they should be invited to a dismissal meeting in accordance with the ACAS Code. If the employee is dismissed they should be given the opportunity to appeal.


Dismissal of employees at any stage of employment must be carried out carefully. Performance related dismissal procedures can be particularly prone to challenge if not used judiciously.

Where high-performance roles such as sales form a major part of an organisation, a robust procedure is essential. Alternatively, formal procedures may be avoided in certain circumstances by offering a without prejudice settlement agreement (formerly a compromise agreement); again, care must be exercised.

For specialist advice please contact Aneil Balgobin via e-mail or by telephone on 0207 611 4848.

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