Not every instance of below-average work performance immediately justifies disciplinary action. At the same time, persistent underperformance can have significant economic pressures for businesses.
Employers therefore often find themselves wondering when poor performance becomes a legally significant issue and under what circumstances a Dismissal on grounds of poor performance is possible.
When does a shortfall in performance become legally relevant?
As a general rule, employees are not required to achieve the maximum possible result, but rather to perform to the best of their personal abilities and knowledge.
Substandard performance only becomes relevant under employment law if it continues over a prolonged period significantly below the performance of comparable employees is left behind.
The key factors here are always the specific nature of the work and the individual employee’s capacity to perform.
Is the problem one of ability or willingness?
From a legal perspective, the first step is to determine whether the shortfall in performance is due to a lack of ability or a lack of willingness to perform.
Inability to perform
If the employee is objectively unable to perform the work required, for example due to a lack of skills or health restrictions, then, in principle, a dismissal on personal grounds into consideration.
Unwillingness to work
If an employee deliberately fails to perform their duties or falls significantly short of their potential, this may constitute a dismissal on grounds of conduct justify.
This distinction is of considerable importance when it comes to choosing the appropriate measures under employment law.
When can a notice of termination be given?
One Dismissal on grounds of poor performance This usually requires that the underperformance be clearly and consistently demonstrable.
In many cases, it is not enough simply to document individual instances of poor work. Rather, it must be possible to demonstrate in a clear and comprehensible manner that the performance over a longer period of time is considerably below reasonable expectations.
In the case of dismissals on disciplinary grounds, there is also often an initial Warning letter is required. The employee must be given the opportunity to change their behaviour.
Only if there is no improvement can termination be considered.
Common mistakes that can cause a notice of termination to fail
Fail in practice Dismissals on grounds of poor performance often due to avoidable mistakes.
These include, in particular:
- inadequate Performance documentation
- missing comparative figures
- hasty dismissals without Warning letter
- failure to carry out a check alternative measures
- unclear targets
Serving dishes high standards to demonstrate a significant shortfall in performance. Employers should therefore begin keeping structured records at an early stage.
Practical tip: Systematically documenting service shortcomings
Companies should set performance expectations as far as possible clearly define and document regularly.
The following are particularly helpful:
- understandable Key performance indicators
- documented Staff appraisals
- Target Agreements
- documented Notices and warnings
The more transparent the performance expectations are, the easier it is to carry out a subsequent assessment under employment law.
Prevention rather than escalation
Not every instance of underperformance necessarily has to result in dismissal. Often, early discussions, clear targets or targeted support measures can already lead to a significant improvement in performance.
At the same time, documenting matters at an early stage lays the necessary groundwork in case legal action under employment law does become necessary at a later date.
Conclusion
The Dismissal of a low-performing employee It is legally possible, but is subject to strict requirements. The key distinction is between lack of motivation and lack of capacity as well as a comprehensive Documentation of underperformance. Taking a structured approach at an early stage significantly reduces the risk of the measure becoming ineffective later on.
If you have any questions on this or other topics, please contact us - we will be happy to advise you.
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