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Nicola-mod
Nicola-mod, Moderator
Category: Employment Law
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We run a cleaning company we have a certain employee whos

Customer Question

We run a cleaning company we have a certain employee who's cleaning standards are not the best and we have had to move her around as the managers have asked us to move her on as they believe her cleaning is of the lowest standard this have happen again and now she is refusing to move where do we stand with her now as we have also offered to move her on
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded.

For now please let me know exactly how long she has worked there.

JACUSTOMER-nvgzx85k- : She have been with us since October 2012 she came over to us on TUPE she had been with her previous employer from feb 2012
Ben Jones :

Thank you very much for your patience. Can you please let me know if the managers you refer to are your clients or just the managers of your company?

JACUSTOMER-nvgzx85k- : They are our clients as we clean bars and restaurants
Ben Jones :

If you are providing services to clients and it is the actual clients that are requesting for an employee to be moved from the work you do for them, you will be quite within your rights to move the employee in question. There has even been case law that supports that dismissing an employee can be fair if this is done after a request by a third party, such as a client, although that would mainly be the case if there was no other job you could place the employee in and that was their main job.

So the above deals with the issue of moving the employee off one client or contract but does not address what you can do with her in general when it comes to her overall employment with you.

An employee's poor performance in their job is a potentiality fair reason for dismissal under section 98(2)(a) of the Employment Rights Act 1996, as it would amount to lack of capability.

For the purposes of an unfair dismissal, "capability" should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality. The capability must also relate to the work that the employee was employed to do. A dismissal may be fair even if the employee is still able to do part of their job".

In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given realistic targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.

Generally, the reasonableness of such dismissals would be measured against the following criteria:

  • Did the employee know what was required of them;
  • Did the employer take steps to minimise the risk of poor performance;
  • Was a proper appraisal conducted and was the problem identified;
  • Were training, supervision and encouragement provided;
  • Did the employer warn the employee of the consequences of failing to improve;
  • Did they give the employee the chance to improve;
  • Did the employer consider alternative employment.

So I suggest you consider taking her through a performance procedure where you discuss the areas of concern, provide examples and issue a formal warning that her performance needs to improve, otherwise dismissal may eventually follow. Offer her support and training if possible and monitor her performance over time, If there is no improvement you may consider further warnings, eventually culminating in a dismissal.

If you are not capable of offering her any more work because every single client you have does not wish to have her on their premises then a dismissal may even be fair now.

Ben Jones :

Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?

Expert:  Nicola-mod replied 4 years ago.
Hello,

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Thank you,
Nicola