I get it.
But I can't tell you what you want to hear.
❌ If you haven’t documented it
❌ If you haven’t explored what’s behind the drop in performance
❌ If you haven’t had the right conversations.
A client came to me recently with this exact situation.
Performance was clearly below standard.
But once we ran our diagnostic, we uncovered:
→ Attendance issues
→ Linked to a women’s health condition
→ That could legally be classed as a disability
(and protected under the Equality Act 2010 - on the grounds of sex and disability)
Had they acted without checking?
It would’ve been unfair dismissal.
Possibly discrimination.
And fully exposed to tribunal.
But, you avoided the gendered topic, you said-
“We didn’t want to open a can of worms.”
But in tribunal?
That can of worms will be opened anyway;
The burden of proof will sit firmly on your side of the table.
That’s why these conversations need to happen early -
Not to overreact.
Not to delay.
But to spot where legal risk hides inside performance issues.
Sure, this may be capability issue but-
the CORRECT process must be followed.
You must acknowledge and address the health concerns,
the absences
and the possible sex discrimination-
before considering a dismissal.
💡If you’re managing someone who’s not performing - here’s what you need to do:
✔️Start with an informal conversation
↳Ask directly and sensitively if anything is affecting their ability to do the job
✔️Check for patterns
↳Has absence or performance been linked to health, mental health, or personal factors?
✔️Measure the outputs
↳Set clear, realistic KPIs
↳Use a performance improvement plan (PIP) if appropriate
✔️Respect employee rights
↳In formal action offer the right to be accompanied
↳Provide written evidence with the right to appeal
✔️Only consider dismissal when it’s proportionate
↳You need to show that you've considered adjustments, alternatives, and support.
Anything less - it’s not a defence. It’s a liability.
Because performance issues are rarely simple.
And if there’s a protected characteristic involved, they’re never low risk.
👋🏽 𝗛𝗶, 𝗜’𝗺 𝗧𝗶𝗻𝗮, 𝗳𝗼𝘂𝗻𝗱𝗲𝗿 𝗼𝗳 𝗛𝗥 𝗛𝗮𝗯𝗶𝘁𝗮𝘁.
𝗜’𝗺 𝘁𝗶𝗿𝗲𝗱 𝗼𝗳 𝗛𝗥 𝗵𝗼𝘁𝗹𝗶𝗻𝗲𝘀, 𝘁𝗼𝗼.
𝗪𝗲 𝗳𝗶𝘅 𝘁𝗵𝗲 𝗛𝗥 𝗺𝗶𝗻𝗲𝗳𝗶𝗲𝗹𝗱𝘀 𝘆𝗼𝘂 𝗱𝗶𝗱𝗻’𝘁 𝗸𝗻𝗼𝘄 𝘆𝗼𝘂 𝘄𝗲𝗿𝗲 𝗴𝗲𝘁𝘁𝗶𝗻𝗴 𝘄𝗿𝗼𝗻𝗴.
𝗠𝘆 𝗺𝗶𝘀𝘀𝗶𝗼𝗻 𝗶𝘀 𝘁𝗼 𝗲𝗺𝗯𝗲𝗱 𝗴𝗲𝗻𝗱𝗲𝗿 𝗲𝗾𝘂𝗶𝘁𝘆 𝗶𝗻𝘁𝗼 𝗲𝘃𝗲𝗿𝘆𝗱𝗮𝘆 𝗹𝗲𝗮𝗱𝗲𝗿𝘀𝗵𝗶𝗽 -𝗳𝗼𝗿 𝗺𝗲𝗻 𝗮𝗻𝗱 𝘄𝗼𝗺𝗲𝗻 𝗮𝗹𝗶𝗸𝗲.
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Founder of HR Habitat, award winner of "Best HR & Employment Law Consultancy, 2024" title. As featured in BBC Oline, BBC Asian Network Radio, Telegraph & more.
