Best way to sack a troublesome worker according to an employment lawyer

Generally, employees need to have at least two years’ service to bring unfair dismissal claims

Some contracts of employment allow employers an option to extend probation if needed (Rex)

There are bad bosses out there, but there are plenty of lousy employees around too.

They may be disruptive, difficult with colleagues, unwilling to learn, lazy or simply don’t want to adapt to the way of the organisation. If you’re faced with a troublesome employee and are thinking of wielding the axe, what are your options?

Probationary periods

If employees are dismissed during or at the end of their probationary periods, employers can usually terminate their employment – provided appropriate notice is served. Some contracts of employment allow employers an option to extend probation if needed.

Dismissing employees under the two-year mark

Generally, employees need to have at least two years’ service to bring unfair dismissal claims. So that means employers do have more scope to get rid of problematic staff before they hit the two-year mark. If things don’t work out during that time, you’re normally able to dismiss the employee without much fuss – again, as long as the right notice is given.

But be warned: an employee could try to bring claims, such as discrimination or whistleblowing, which have no length of service requirement. It’s therefore advisable to follow some sort of process wherever possible (including when the employee is on probation) – so you can account for your decisions.

Also beware that employees can take the minimum statutory notice into account in getting over the two-year mark. This is one week for continuous employment of less than two years but over one month. So if you dismiss an employee a few days before their two years’ service without serving them notice, an extra week can be added for the purpose of calculating the two-year period.

The poor performance process

Of course you might not need to go to the lengths of dismissal. Perhaps you’re simply dealing with a member of staff whose performance is poor.

When an employee’s work is not up to scratch it might be appropriate to put them on a performance improvement plan. They should be given objectives and have an opportunity to improve. If the employee doesn’t raise their game, they could be required to attend a meeting. After that, it may be necessary to issue them with a warning. This process can be repeated, which might result in a final warning and a last chance to turn things around.

If they’re still not cutting the mustard, dismissal could be an option. But another hearing must be held first, and the employee should then have a right of appeal.

If you don’t follow a proper process, the employee may have grounds to bring an unfair dismissal claim.

Reaching a deal

Even when there is no dispute with the employee, you may still be able to have an off-the-record conversation with them and try and reach a deal. As long as there is no improper behaviour, such as blackmail, the “protected conversation” would be inadmissible in any general unfair dismissal proceedings. However, be careful. There are some exceptions for unfair dismissal claims including where the dismissal relates to pregnancy, where you don’t get that protection. Also other claims such as for discrimination aren’t protected. It’s therefore sensible to speak to your lawyer before having those discussions.

When a deal is reached, the parties would normally enter into a settlement agreement; the employee being obliged to obtain independent legal advice on such an agreement.

Matt Gingell is a specialist employment lawyer and legal commentator. He advises businesses and individuals on all employment law related issues. He also writes articles, HR guides, and employee guides.