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‘Holey’ Bread Gives Rise to Unfair Dismissal

A Head Baker who produced a lot of limp and holey loaves has been found to have been unfairly dismissed for poor performance.

This wasn’t because the business in the case of Piaszczynski v Leakers Limited lacked a good reason for dismissing him, but that the performance management process was, well – leaky.

Unfairly dismissed because of poor performance management.

Had the business managed the situation better they could have saved themselves some dough, not least because the tribunal uplifted the compensatory award by 25%.

This was because of a failure to follow the ACAS Code of Practice on Disciplinaries and Grievances (don’t let the name fool you, the Code applies to managing poor performance too). 

The outcome? The employee was awarded nearly £15,000 for the unfair dismissal.

This case highlights the importance of businesses of all sizes knowing how to handle poor performance.

So, we ask you – if a situation along similar lines happened in your business are you confident you would be able to manage it appropriately?

  • Take our ‘bad baker challenge’ to help you asses your performance management knowledge. The judge commented in this case that there were at least four key failures to comply with the ACAS Code, can you spot them when reading about the facts below?

  • Find out what a performance management process usually looks like . This can help you be aware of what to expect when managing issues in your business.

  • ‘Use your loaf’ – find out about some alternative approaches to handling poor performance.

Facts of the case

The employee was a Head Baker who had worked at the business for over five years. Some of the bread he was producing wasn’t up to standard – loaves sometimes had large holes in the middle or were so soft they would fall over. The poor quality was affecting business and the employer’s reputation.

To address the matter the business raised the issue verbally with the employee on a number of occasions. Along with leaving the employee examples of poor-quality loaves, they also issued him with warnings by putting letters on his workbench at the start of the day for him to pick up and read. These included:

  • December 2020 – A letter explaining the situation about the poor quality of the loaves, and the problems it was causing, referenced previous conversations regarding the issue and concluded with “as you continually take no notice, I am issuing you with a written warning.”

  • September 2021 – A letter saying “I have asked you again and again and again to mould the bread so that we do not have holes through the middle of the loaf. This letter is a formal notice to warn you that this cannot continue….”

  • December 2021 – A letter stating that it was a final written warning regarding the poor quality of the bread.

Later in December, the employee was called alone into a meeting without warning and was provided with a Polish interpreter.

He was simply told that his performance had been substandard and, although he said that he had not been aware of previous warnings, he was dismissed. This was confirmed in writing, he was not provided with any right of appeal.

The employee complained to an employment tribunal that he had been unfairly dismissed.

What did the judge say?

The judge found that the reason for the dismissal was a fair one – capability and that the business genuinely and reasonably believed the employee was underperforming. However, the dismissal was unfair for reasons including:

  • “In performance cases of this sort, an employee needed to have been provided with an adequate and clear explanation as to why he was considered to have been failing in the role. Adequate warning, with targets and opportunities for improvement, needed to have been given”. This hadn’t happened in this case nor had there been any discussion around addressing problems through training.

  • No clear warnings had actually been properly received or understood by the employee. Whilst the judge didn’t accept the employee’s argument that it came as a surprise to him that there was a problem, the business had not done enough to make him aware that he had been issued with ‘warnings’. They hadn’t been effective in communicating it to him given his “poor grasp of written English” and the way they had simply left the letters for him. (It’s worth bearing in mind that even if this wasn’t the case, an employee shouldn’t simply be given a letter if it’s intended to be a formal warning e.g a final written warning, there is a process to follow).

  • There were significant procedural failings and the employer was in breach of the ACAS Code. There was no advance invitation to the dismissal meeting, no warning that the meeting was one at which his dismissal might have been discussed and he was not given advance notice of the evidence the business was relying on. Furthermore, he was not given the right of representation by a trade union representative or a colleague and he was not given any right of appeal.

The judge commented that “the basic principles that one would have expected to ensure that a dismissal of this type was fair, were not adhered to”. So, in outline what does a performance management process usually look like?

Performance Management Process

Very briefly, a performance management process will usually involve:

  • Meeting with the employee informally to discuss concerns. If there is no satisfactory explanation for the poor performance, set appropriate targets, agree training (where appropriate) and give the employee reasonable time to improve.

  • Holding a performance review meeting to determine if their performance has improved sufficiently. If performance is unsatisfactory or there is no improvement, inviting the employee to attend a capability hearing (providing evidence and informing of the right to be accompanied)

  • Holding the hearing and subsequently giving a written outcome and a right of appeal.

  • If poor performance continues, repeating the formal process, building on live warnings, until performance improves, or a safe dismissal can be achieved.

If you are concerned about the performance of an employee in your business, it’s vital to seek advice on the situation you are facing before acting. We can give your business the tailored support you need to prevent costly mis-steps.

Use Your Loaf - Performance Management Alternatives

If a performance management process sounds too slow, too cumbersome, or more time-consuming than you’d hoped, there might be another way.

If your employee has short service, check out our blog on dismissing short-serving employees the easy way.

Doesn’t fit your situation? You may want to think about whether a settlement agreement is the commercial option you’re looking for. We have a specialist settlement agreement service just for employers so do get in touch.

However you are considering dealing with a poorly performing employee, remember to reach out for advice first to make sure you have the information, guidance, and support you need to tackle the specific situation troubling your business.

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