(EP 31) Georgie Chapman (HR Law Expert): The Fix for Employee Underperformance & Avoiding Unfair Dismissals.

Georgie Chapman – Performance Management

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John Downes: Welcome to the critical few actions to improve your business podcast. I’m John Downes and I’m here to help you cut through the overwhelm and prioritize what matters most to improve your business. Let’s get started and discover the critical few actions that have the biggest impact.

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John Downes: Georgie, following from our discussion of hiring and setting the new employee up for success. What do we do when things don’t go so right? If I’m assessing the situation of my options, if my employee’s performance is lackluster, what do I do?

Georgie Chapman: Well, John, I think it really depends on how long that person’s been employed. And the broader context. So if someone is a fairly new employee, they’ve only been with you a few months and perhaps still in their probationary period. If their performance is not up to scratch at that point in time, sometimes that can be a pretty big red flag as to whether they’re suitable for that role.

It’s not a legal requirement while that person has only been there a few months to formally performance manage them in terms of the potential unfair dismissal risk. Employees are only protected from unfair dismissal if they have served a minimum employment period. For businesses with 15 or more employees, that is six months. For small business employers with fewer than 15 employees, the minimum employment period is 12 months. That’s an important threshold to bear in mind because during the minimum employment period, you’re assessing someone’s suitability for the role.

If in the early stages, there’s a clear issue with that person’s experience, skills, or performance, it can be a real red flag as to whether they’re the right person for the role. It’s worth considering whether you move beyond their probationary period for ongoing employment. If you terminate before the minimum employment period threshold, you don’t have the risk of an unfair dismissal claim, making it more straightforward legally.

John Downes: So just to clarify before we go on, if I have an employee and it’s not working out from a performance or even a cultural fit perspective, and I have fewer than 15 employees, I can terminate their employment at any point up to 12 months without reason. Would that be fair?

Georgie Chapman: Yes, effectively without risk of an unfair dismissal claim. There are other protections that apply in that period, such as the risk of a general protections claim, which makes it unlawful to dismiss someone based on discriminatory attributes like race, gender, age, or parental responsibilities. If someone has exercised a workplace right, such as making a bullying complaint or raising an underpayment query, that’s also a theoretical risk.

In those cases, if you’re terminating due to performance or attitude issues, it’s sometimes worth explaining the reason so they don’t assume it was for a protected reason. But from an unfair dismissal perspective, you don’t have to go through a formal performance management process if they aren’t yet protected.

John Downes: So if I want to give an employee more time and extend their probationary period, can I do that?

Georgie Chapman: Probation is a contractual issue. Your employment contract might state a six-month probationary period, but that runs parallel to the minimum employment period for unfair dismissal protection. If the employee reaches six months and they work for a company with 15 or more employees, they are now protected from unfair dismissal, even if probation was extended.

Employers may want to give an employee more time to improve, but they need to consider the legal ramifications. Some employers formally performance manage an employee during probation, but that can complicate things. If an employee struggles in their probationary period, it’s often an early sign they may not be the right fit.

John Downes: I see employers wanting their employees to perform more than the employees themselves do. They reach five months and think, “Maybe things will improve,” even when the issues were present early on.

Georgie Chapman: Exactly. That period is an assessment for both the employee and the employer. If the employee is not engaged and doing their best during probation, that’s a red flag. Employers invest a lot in recruitment and training, but if it’s not working in the early period, it’s often a sign it won’t improve. Making the difficult decision early is better because, in my experience, it rarely gets better over time.

John Downes: In 30+ years, I’ve seen only one amazing turnaround out of thousands of employees. So what’s good practice during probation?

Georgie Chapman: Employers should take an intentional approach. Having structured check-ins at one month, three months, and before probation ends can help assess performance and fit. These meetings don’t have to be formal assessments, just regular check-ins to see how things are going. If performance issues arise, you’ll catch them early rather than scrambling the day before probation ends.

John Downes: So managers should schedule probation review meetings on day one?

Georgie Chapman: Absolutely. Many employers forget until the last moment. Scheduling meetings in advance ensures regular check-ins. I’ve seen employers miss the deadline by one day, making the process more complicated. Being intentional avoids last-minute stress and potential legal risks.

John Downes: If I want an employee to improve and be part of my business long-term, how does performance management help?

Georgie Chapman: Performance management isn’t just about exiting employees. It’s about giving them the tools to meet expectations. Employers need to clearly articulate concerns, provide examples, and outline what improvement looks like. Training, regular check-ins, and additional support can help employees meet expectations.

John Downes: Should this process be documented?

Georgie Chapman: Yes. Documentation is critical from a legal and practical perspective. It ensures clarity for both the employer and the employee. It also helps demonstrate fairness if a termination is challenged. The documentation should outline concerns, improvement areas, and support provided. If improvement doesn’t happen, the documentation serves as a record that the employer acted fairly.

John Downes: If improvement doesn’t happen, what’s the termination process?

Georgie Chapman: If the employee is protected from unfair dismissal, procedural fairness is required. The employer must meet with the employee, allow them a support person, outline concerns, and state that termination is a preliminary decision. The employee should be given a chance to respond before a final decision is made.

John Downes: Should an employer have a witness for termination meetings?

Georgie Chapman: Yes, having another employer representative take notes can help ensure fairness. However, the meeting shouldn’t feel overwhelming to the employee.

John Downes: What’s a professional way to communicate termination?

Georgie Chapman: “We’ve decided to end your employment as you haven’t met performance expectations.” Using clear, professional language avoids confusion and ensures transparency.

John Downes: Any final advice?

Georgie Chapman: Be proactive. Address issues early. Seek advice before problems escalate. Invest in management training to ensure leaders handle performance management effectively.

John Downes: Thanks, Georgie. This has been very insightful.