Poor performance dismissal after refusal of redeployment

Where you’ve offered an employee redeployment as an alternative to being dismissed for ongoing poor performance, but they’ve declined your offer, the next stage is usually to dismiss them.

Dismissal alternative

As an alternative to dismissing an employee for poor performance as the final stage of performance managing them under the terms of our Capability Procedure, you may have instead decided to offer them an available role which you believed was more suited to their skills and abilities. In this case, you may have sent them our Redeployment Offer after Performance Review Meeting. That letter offers the employee redeployment to a new role and seeks their consent to it.

Acceptance of redeployment offer

If the employee accepts your offer of redeployment, they then start and continue in their new role in the normal way – but you can begin the performance management process again if it subsequently transpires that they can’t perform that role to your required standards either, and this time you might not want to consider them for alternative employment once you reach the end of the line with warnings under your capability procedure.

Rejection of redeployment offer

However, where the employee rejects your offer of redeployment, ordinarily the position would then revert to that of dismissal on the ground of poor performance – and you should already have warned the employee that this would be the outcome if they did decide to reject your offer. Our Poor Performance Dismissal after Refusal of Redeployment letter therefore confirms the employee’s dismissal in these circumstances. Our letter states that the reason for dismissal is the employee’s poor performance due to their lack of capability, explains the nature of their performance failings, refers to their refusal to accept your offer of redeployment and includes a right for them to appeal against your dismissal decision. It also serves as a prompt to check that everything else is covered, e.g. accrued holiday pay, the appropriate period of notice (and whether you want them to work it) and the date on which their employment will end.

Potentially fair dismissal reason

Under the Employment Rights Act 1996 one of the five potentially fair reasons for dismissal is capability, which is defined in the legislation as meaning the employee’s “capability assessed by reference to skill, aptitude, health or any other physical or mental quality”. So, provided you’ve followed a fair warnings procedure to its natural conclusion, and you act reasonably in treating the employee’s lack of capability as a sufficient reason for dismissing them, it should be a fair dismissal. The test is whether your dismissal decision was within the “band of reasonable responses” open to you, so you’ll need to show you gave the employee sufficient opportunity to improve and you did what you could to support them, and at the dismissal stage this will often include considering redeployment if there’s a more suitable alternative position available.