Dismissal on notice due to unsatisfactory performance/conduct letter

You should only use this letter where the employee has short service. This is because longer-serving employees have unfair dismissal rights so they need to be treated entirely differently in the dismissal procedure to be adopted.

Dismissal of short-serving employees

This letter should only be used for short-serving employees who do not have the right to claim unfair dismissal. An employee can generally make a claim for unfair dismissal if they have been employed for two years or more. Generally, where an employee has shorter service, their only legal entitlements are to their contractual notice period (or to pay in lieu if you do not wish them to work out this period), to all outstanding wages up to the date of termination of their employment and to pay in lieu of accrued but untaken annual leave entitlement. These issues are all covered in the Dismissal on Notice due to Unsatisfactory Performance/Conduct Letter. Whilst you’re not legally obliged to provide written reasons for dismissal, it’s better to do so just for in case the employee later tries to allege they were dismissed either for an unlawfully discriminatory reason or for one of the many “automatically unfair” reasons for dismissal. These claims do not require any minimum period of qualifying employment.

Employees with longer continuous employment

Where an employee has been employed by you for two years or more, they have the right to claim unfair dismissal. In order to defend an unfair dismissal claim, you would need to show both a potentially fair reason for dismissal and that you treated the employee fairly in the dismissal procedure you followed. You would therefore need to go through a much more detailed disciplinary or capability procedure. The three main potentially fair reasons for dismissal are misconduct, lack of capability (encompassing both poor performance and long-term incapacity) and redundancy.