Can I select a poor performer for Redundancy?

There are a few key factors to consider when making redundant someone who is not performing.

Generally, if someone is not performing, you should follow a ‘capability’ or ‘performance improvement’ process. This is because the reason for their potential dismissal will be their performance not because their role is redundant.

When making someone redundant, the redundancy must be genuine - that is, there must be a real need, for example, to reduce the workforce when making someone redundant. If there is no genuine redundancy situation, then dismissing someone because they are not performing will be unfair.

However, if you are in a genuine redundancy situation, then performance may be a factor in the selection process. When choosing who to make redundant, employers must undertake a fair, objective and transparent selection process. It is here that underperforming employees could be chosen, provided their poor performance is:

known to them and has been raised with them. If not, it will be open to them to challenge it as it will appear unfair and lack transparency.
genuine and can be supported by evidence.
part of a wider range of objective criteria.
not caused by any form of discrimination, in particular, any absence on statutory leave (e.g. maternity leave) and/or any disability. Selecting someone for poor performance that arises out of their disability, is likely to be an act of discrimination.

The selection process is usually the main area of contention, and the biggest area employees have to challenge their selection/dismissal, and it is where discrimination can (inadvertently) creep in.

If you are considering making someone redundant or if you have underperforming employees, it is essential to seek professional advice beforehand to ensure that you're taking the right steps and following the correct procedures. Otherwise, you could find yourself facing an unfair dismissal claim, or worse, a discrimination claim.

Article by

Marianne Wright

0800 915 7777

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.

We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.

Disclaimer

The above provides a general overview relating to constructive dismissal and is not intended nor construed as providing specific legal advice. Constructive unfair dismissal is a complicated legal claim. An individual should take legal advice from an employment lawyer if they believe their employer has behaved in such a way that entitles the employee to resign and bring a claim for constructive unfair dismissal.

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice.

01.06.2023

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