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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50517
Experience:  Qualified Employment Solicitor
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I have an employee who isn't keeping up with her workload

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I have an employee who isn't keeping up with her workload and is making a lot of mistakes. She has a liver condition which means she is having treatment and we have been trying to work with her over the past 6-10 months by reducing her times from 8-5 to 8-3pm as she gets tired in the afternoons. It was always stipulated that the situation would have to be reviewed depending on her performance as the business is growing and and we cannot afford to "carry anyone."We have been very patient with her but she is making a lot of mistakes and it is causing the office issues having her hours reduced by 10 hours per week as her main role is picking up new instructions from clients, phones, queries and assisting the other colleagues and those 2 hours every day are really stretching the team. Where do i stand with this?
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long has she worked there for?
Customer: replied 2 years ago.

Hi Ben,

She started with us on the 8th September 2014, within a full time position of 8 till 5pm.

Are her performance issues directly related to her condition?
Customer: replied 2 years ago.

We feel that they are. When she first applied for the position, the application detailed that she had a kidney problem and that it was progressive, but she did not feel it would hinder the job that she applied for.

This condition has now progressed and she requested to reduce her working hours by 10 per week. We did state that this would have to be monitored given that she is an integral part of a team and her work directly affects others performance and our business in general. She gets tired through the day which causes errors in her duties and her working hours we feel are not comparable if a well person was doing the same job. We have tried to support her but we are finding it difficult to sustain.

The main issue for you in this situation is the likelihood that this person’s condition is going to be classified as a disability. This means they would get certain legal protection against detrimental treatment and it will also place strict obligations on you to make reasonable adjustments to try and help them. If you treat them detrimentally because of their disability or fail to make reasonable adjustments and for example dismiss them, you could be found guilty of disability discrimination and/or unfair dismissal. So whilst that does not mean you are stuck with them forever, you would need to follow strict procedures before you can even consider removing them. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’. The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. I will break this definition down:Physical or mental impairment – this can include nearly any medical condition;Substantial effect – the effect must be more than minor or trivial;Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.) If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination. This is your basic legal position. I have more detailed advice for you in terms of the procedure you must follow should you decide and remove them and also a list of reasonable adjustments expected of you which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Thank you. So as mentioned, an employee's poor performance is a potentiality fair reason for dismissal under the Employment Rights Act 1996, as it would amount to lack of capability. This should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality" and must relate to the work that they were employed to do.
In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable 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 employer have reasonable belief in the employee's incompetence;
• Was the situation investigated and was the employee given the opportunity to voice their side of the story;
• Was the employee aware of what was required of them in terms of satisfactory performance;
• Were steps taken to minimise the risk of poor performance through training, supervision, etc;
• Was a proper appraisal conducted and was the problem identified in a timely manner;
• Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;
• Did the employer consider offering alternative employment.
The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged.
Also consider your obligation to make reasonable adjustments to try and help her before you consider performance steps. What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:
• making adjustments to work premises;
• allocating some of the employee’s duties to others;
• transferring the employee to fill an existing suitable vacancy;
• altering the employee’s hours of work;
• allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
• acquiring or modifying specialist equipment;
• providing supervision or other support.