How many warnings do you need to give an underperforming employee before dismissing them?

What's the best way to deal with an employee who is underperforming? At what point is it fair to say, you've had enough time to improve, and fairly dismiss them? Six months? Twelve months? Longer? 

In Anita Briggs v The Trustees of the National Museums of Scotland the tribunal had to decide whether the employee had been unfairly dismissed after she was taken through a long informal process, but only one formal hearing before she was sacked.  

Facts

Ms Briggs was a digital media content producer. Her primary duties were to plan, co-ordinate and create new content for the museum's website and social media channels. 

The museum had concerns about her performance including a lack of attention to detail, missing deadlines for producing content, and failing to follow processes. It put her on a Performance Improvement Plan (PIP) from May to November 2022. She failed to improve and was put on a second PIP in June 2023, followed by a third PIP (which they called a “formal PIP”) in October 2023. 

In January 2024, she was invited to attend a formal hearing where she was dismissed. She appealed but the decision was upheld. 

Ms Briggs brought an unfair dismissal claim. She argued that: 

• She was performing well in 60 to 70% of her role so capability was not the real reason for dismissal
• Her personal circumstances were overlooked (she was experiencing personal stress)
• The museum carried out a forensic investigation into her performance
• She hadn't received any training or guidance to help her improve
• The company hadn't considered redeploying her (the dismissing officer didn't consider it, believing it was only an option in cases of relationship breakdowns) 
• The department had a high turnover of staff. This impacted on her but hadn't been considered
• She was not given prior warnings before she was dismissed
• The process was fundamentally flawed because the appeal officer spoke to the dismissing officer without her after the appeal hearing

Decision of the tribunal

What did the museum get right?

The tribunal found that the museum had a genuine belief that Ms Briggs was not performing in the critical areas of her role. There was no evidence of any conspiracy or ulterior motive; capability was the real reason for dismissal. 

The tribunal then assessed if the museum followed a fair process before dismissal and held that:

• They correctly identified her performance issues, allowed her to respond, set clear objectives, provided training, support, and took into account her personal circumstances
• She was not singled out and the investigation into her performance was appropriate. By way of example, in December 2023 she had produced six social posts compared to a colleague who'd prepared 73! 
• Resource shortages did not detrimentally impact her performance
• Redeployment was appropriately considered at the appeal stage
• There was no breach of the ACAS code because she had the right of appeal, the right to be accompanied, she knew the case against her, had the right to put forward her views, there were lengthy investigations, there was no unreasonable delay, and no evidence of any inconsistency
• The appeal officer's discussion with the dismissing officer, without Ms Briggs, did not constitute a material procedural failing; there was nothing that required a response from Ms Briggs

What did the museum get wrong?

The tribunal held that the museum did not adhere to its own performance policy which required an informal PIP stage followed by a formal procedure if performance standards were not met. 

This formal procedure included a hearing that could result in: 

• No formal action, with or without an updated PIP
• A First Written Warning with an updated PIP
• A Final Warning with an updated PIP
• Dismissal

Although the policy didn't say that warnings should be sequential, the tribunal stated that dismissal after an unsatisfactory PIP without formal warnings should only occur in extreme cases. This was not an extreme case: the museum should have given at least one level of formal warning before they dismissed Mrs Briggs. That meant that her dismissal was procedurally unfair.  

How much compensation did she receive?

The tribunal said that if the museum had followed its policy, she would still have been dismissed around three months later. Therefore, it limited her compensatory award accordingly. In total, she was awarded £22,210.75.  

What lessons can employers take from this?

It should go without saying that if you have a performance management policy which sets out the steps you say you will take, you must follow it. If you don't you'll be opening yourself up to a potential unfair dismissal claim - even if the employee knows, through the discussions you've had with them informally, that they need to improve and could be dismissed if they don't. 

That doesn't mean that you shouldn't try to resolve the issue informally first. Sometimes that's all it takes. But, if the employee doesn't improve within a reasonable timescale, you should move to the formal process. The formal process you adopt should include the steps set out in the Acas Code of Practice on Discipline and Grievances. You can also obtain further guidance from the Acas guide, which sets out best practice.

As a minimum the employees needs to understand what aspect of their performance you are unhappy with and how they need to improve. You need to set reasonable objectives, provide any training they need and give them enough time to improve. That needs to be confirmed in the improvement notice which can serve as a warning for these purposes. 

What's reasonable in terms of how long you need to give an employee to improve is fact specific. There's no minimum: it will depend on their length of service (you'll generally be expected to give longer serving employees more time to improve than those you have just recruited), their seniority, their general health and any other factors that have led to the problem. For example, if the employee has been asked to do different types of work or has been given new technology to assist them, you'll need to give them enough time to get to grips with this. 

If your employee has a disability you may need to adjust your process, including the timescales you set and consider whether it is appropriate to issue a warning. You can read a case where the employer got this wrong here.

Once you've reached the end of the road, you need to consider alternatives to dismissal which might include redeploying them to a different role. You need to be (reasonably) confident that they have the skills to undertake the new role, otherwise you'll just be moving the problem to a different team or manager.

Employees currently need two years' service to bring an unfair dismissal claim, and you can short-cut the procedure if they've not worked for you that long (provided the problem isn't caused by a disability which triggers the duty to make reasonable adjustments). But you may not be able to do that for that much longer. The Employment Rights Bill which is currently working its way through parliament will give employees a ‘day one’ right to claim unfair dismissal.  You can find out more about that here.  

Our Employment Talk podcast: Everything you need to know about performance management explains the general principles that apply, what reasonableness looks like in the context of unfair dismissal claims and why you need to make adjustments to the process if the employee is disabled.

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