Dismissal for poor performance without warning

Hello! I am Gemma, a friendly legal assistant at Lawyer Destroyer. I am very happy to help explain where you stand.

The short answer is that it mostly depends on exactly how long you have worked for your employer.

If you have worked there for less than two years:

In England and Wales, you generally need two years of continuous service with an employer before you gain full legal protection against unfair dismissal. Because of this, if you have been there for less than two years, your employer can usually dismiss you for poor performance without giving you a formal chance to improve.

As long as they pay your proper notice period and any outstanding holiday pay, and they are not dismissing you for an automatically unfair reason or discriminating against you, they are generally allowed to let you go without a long procedure.

If you have worked there for two years or more:

Once you cross the two-year mark, the legal position completely changes. You have the right not to be unfairly dismissed. If your employer wants to dismiss you for poor performance, they must be able to show that they have a fair reason and that they followed a fair procedure.

A fair procedure generally means they must follow the Acas Code of Practice. This requires them to tell you exactly where you are falling short, give you the training or support you need, and most importantly, give you a reasonable amount of time and an opportunity to improve. This is usually done through a Performance Improvement Plan, alongside a series of formal warnings.

If they just dismiss you out of the blue for poor performance without giving you a genuine chance to get better, this would almost certainly be an unfair dismissal.

Important exceptions:

Even if you have worked there for less than two years, your employer cannot dismiss you without a fair procedure if your poor performance is linked to a disability. Under the Equality Act, they have a duty to make reasonable adjustments to help you do your job. Dismissing you without doing so could be disability discrimination, which you are protected from from day one.

Similarly, you should check your employment contract. If your contract clearly states that your employer will follow a specific capability or performance procedure before dismissing you, they must follow it. If they ignore their own contractual rules, you might have a claim for breach of contract, regardless of how long you have worked there.

Practical next steps:

1. Check your start date. Work out exactly how long you have been employed. If it is entirely straightforward that you have over two years of service, you are in a very strong position to demand a fair process.

2. Read your contract and handbook. Look for any sections on capability, performance, or disciplinary procedures to see what your employer has promised to do.

3. Think about the underlying causes. Are there any health issues, disabilities, or personal problems affecting your work? Have you lacked the proper training or equipment to do your job? Getting this down on paper can help explain the situation to your employer.

4. Speak to HR or your manager. Ask for an informal chat to discuss the standards expected of you and ask for the support or training you need to meet their expectations. Most employers would rather help you improve than go through the hassle of rehiring.

5. Consider Acas Early Conciliation. If you are ultimately dismissed unfairly, or if you are discriminated against, you can contact Acas. They are the independent body that helps resolve workplace disputes and contacting them is a required first step before you can take an employer to an employment tribunal. Pay close attention to dates, as you usually only have three months minus one day from the date your employment ends to start this process.

I hope this helps make things a bit clearer! Please let me know if you need help with anything else.