Anita Briggs, who worked for the National Museums of Scotland, was responsible for planning and creating new content for the organisation’s social media platforms. However, the tribunal heard that she would regularly miss deadlines and make spelling errors over the course of two years.
After failing three performance reviews, bosses lost confidence in her work ability and she was dismissed.
This case is a stark reminder of the need for employers to carefully follow their own policies, Laura Binnie, legal director for employment at law firm Broadfield UK, told HR magazine.
She said: “A tribunal will want to see evidence that the managers involved have both understood, and applied, the relevant internal policy. Here, the issue was not the failure to manage the claimant’s underperformance as such, but the failure to give her any adequate warnings, under the employer’s own disciplinary policy, before moving to dismissal.”
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Briggs was initially put on an informal performance improvement plan (PIP) in May 2022. When this concluded six months later, her manager felt there had not been any "satisfactory improvement in performance". She was put on another informal PIP, and had a new manager who decided the objectives for this also had not been met.
The tribunal heard that, from June to August 2023, Briggs had produced only two pieces of content, one of which required significant amendment, which was "substantially below what was expected of her".
Briggs was then off sick for a period. Upon her return to work she was notified that a formal PIP would be put in place until January 2024. She was told that at the end of this process there could be a formal meeting and that this may result in dismissal.
But, just a month after it commenced, she did not produce any content for an entire month. The following month, she produced six posts compared with her colleague’s 73. She subsequently failed the PIP and was dismissed.
Phil Pepper, employment partner at law firm Shakespeare Martineau, told HR magazine that although an employee will be aware that their performance is unsatisfactory when placed on a PIP, they also need to be fully aware of the consequences should their performance not improve.
He added: “This makes it really important that employees are given formal warnings, similar to those used in misconduct cases, at each stage, for example, first, second and third warnings.
“At the last stage, the employee should be informed that any further failure to improve to the desired standard will result in dismissal. That way they are aware of the consequences and should not be surprised later if dismissal is the outcome.”
The panel ruled that Briggs had been unfairly dismissed and ordered the trustees of the National Museums of Scotland to pay her £22,210.75 in compensation.
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“This is a good example of how employers can lose at tribunal even when they get almost everything right,” said Gill McAteer, director of employment law at compliance service Citation, speaking to HR magazine.
To avoid this, McAteer said managers should be thoroughly trained: “It is essential that managers are also given adequate training and instruction to follow the policy carefully. There should be no ambiguity around the appropriate time to issue formal warnings, as this can lead to confusion that will ultimately work against businesses in an employment tribunal.
“It’s important for managers to consider the full range of options available when it comes to making a final decision on an underperforming employee. As noted by the judge during this tribunal, it was reasonable to expect larger employers to consider potential redeployment instead of dismissal.
“Where possible, this should be a consideration for employers, and they should be prepared to demonstrate that this option was explored or why it wasn’t offered where relevant.”
Fiona Morgan, head of employment at Arbor Law, said that employers should try to act on underperformance during the probation period.
Speaking to HR magazine, she advised employers to: “Act quickly, and ideally within the employee’s probationary period.
“As the law currently stands for the time being, employees generally require two complete years’ service before they may bring an unfair dismissal claim. However, performance issues frequently become apparent long before two years’ service.”