Do we pay full notice period upon dismissing employee (<2 yrs, on account of poor performance)

[jalucia]

Hi - our employee who is with us <6 mths is performing poorly and we will soon take them through a formal PIP shortly. #

My question is assuming they do not pass the PIP are we obliged to pay their contractual 3 months notice period OR as this is still <2 years under UK law is there another option?

Note we're aware that we don't necessarily need to go through a full fledged PIP process but are keen to ensure their a 'fair' process so in the event they don't pass a 4-6 week process are we able to exit them immediately and/or pay like 1 month or 6 weeks instead of the 3 months... (we may still align to the 3 months but just keen to know what is obligatory, or not).

Your advice appreciated.

Thanks

 

[Newchodge]

Yes.

 

[HFE Signs]

Key thing here is 'contractual 3 months notice' so you are obliged to it.

 

[pentel]

Why would you have a 3 month notice period?

If you have to fire them you are tied to paying them for a further 3 months.

If they want to leave they will usually either a) leave to suit themselves, could be the same day or b) do the minimum necessary to continue to get paid.

Once someone has mentally left the building why would you want them there?

 

[HFE Signs]

Why would you have a 3 month notice period?

If you have to fire them you are tied to paying them for a further 3 months.

If they want to leave they will usually either a) leave to suit themselves, could be the same day or b) do the minimum necessary to continue to get paid.

Once someone has mentally left the building why would you want them there?

3-months notice is very common in higher calibre positions, generally put in the contract to protect the business

 

[Newchodge]

3-months notice is very common in higher calibre positions, generally put in the contract to protect the business

I think the point being made is that they do not protect the business. If someone wants to leave you really do not want them working in your business. At the very least they will be disinterested and potentially they could be actively harmful.

On the other hand, if you dismiss them you want them there even less! That is why so many employers, when terminating a contract, give PILON or put the employee on garden leave.

 

[HFE Signs]

I think the point being made is that they do not protect the business. If someone wants to leave you really do not want them working in your business. At the very least they will be disinterested and potentially they could be actively harmful.

On the other hand, if you dismiss them you want them there even less! That is why so many employers, when terminating a contract, give PILON or put the employee on garden leave.

Very true, but on the other hand it makes people less likely to job hop

 

[jalucia]

Very true, but on the other hand it makes people less likely to job hop

3-months notice is very common in higher calibre positions, generally put in the contract to protect the business

3 and 6 months increasingly common and we are seeing it even at junior to mid-level positions now.

Why so?

My take is that the huge attrition of young staff in today's working world and willingness to jump ship every 6-12 months makes it difficult to plan so employers round the board are fixing minimum 3 months notice periods.

Consider talent demand is tight and hiring has been imo one of the biggest challenges I've ever seen in my career and this sentiment is mirrored even in our non-UK markets.

So accessing talent you tend to go through a recruiter which comes at a large cost in itself. So employers are faced with 'why' risk paying a recruiter, then allowing your staff to walk out the door 8 months later and then spend 3-4 months rehiring again, possibly through a recruiter and again incurring more cost please being hamstringed because you allowed your staff to walk out the day...

The 3 months is essentially an 'insurance policy' which employers have been forced down this path. True that when an employee resigns they likely check out but at least you have the option to leverage them for what resource you can derive and not left out in the lurch with zero account staff until which time you can replace them. Your experience may differ based on sector but in my world (professional services ad industry) it's a major issue hence the 3 months...

 

[IanSuth]

3 and 6 months increasingly common and we are seeing it even at junior to mid-level positions now.

Why so?

My take is that the huge attrition of young staff in today's working world and willingness to jump ship every 6-12 months makes it difficult to plan so employers round the board are fixing minimum 3 months notice periods.

Consider talent demand is tight and hiring has been imo one of the biggest challenges I've ever seen in my career and this sentiment is mirrored even in our non-UK markets.

So accessing talent you tend to go through a recruiter which comes at a large cost in itself. So employers are faced with 'why' risk paying a recruiter, then allowing your staff to walk out the door 8 months later and then spend 3-4 months rehiring again, possibly through a recruiter and again incurring more cost please being hamstringed because you allowed your staff to walk out the day...

The 3 months is essentially an 'insurance policy' which employers have been forced down this path. True that when an employee resigns they likely check out but at least you have the option to leverage them for what resource you can derive and not left out in the lurch with zero account staff until which time you can replace them. Your experience may differ based on sector but in my world (professional services ad industry) it's a major issue hence the 3 months...

But it doesnt

I did 27 years in IT recruitment - think i saw maybe a couple of people actually work out a 3 mth notice period.

Either you are paying them for 3 mths garden leave as they gen up on what is needed for their new role and prepare for it or more often they just say "I am handing in my notice and will be leaving in a months time no matter what" and the is little to nothing you can do about it. I saw many candidates have their current employer threaten all sorts about bad references and threats of court action but the reference is irrelevant if itis just going to that new company and they know the circumstances and all you could claim in court would be the difference between the cost of temporary cover and the saved cost of the unpaid extra 2 months pay to leaving employee which is not worth the legal fees (in all the cases i saw)

As an aside - if you got that employee through an agency very very swiftly check your TOB's with them, there may be a rebate clause running to 6 months which would make getting rid of them sooner cost you less (through a rebate on placement fee) or to save paying that back (which agencies & recruiters hate) you may get a free or very heavily discounted replacement hire. Even if out of rebate terms most decent agencies wanting to maintain a relationship will give a discount on a replacement especially if it is due to non performance.

What is wrong with the performance and is there a way you can assess/test that in a replacement to reduce the risk of a repeat ?

 

[HFE Signs]

If you have a case of gross misconduct, you don't have to pay any notice. Maybe you could explore if anything constitutes to that?

 

[jalucia]

But it doesnt

I did 27 years in IT recruitment - think i saw maybe a couple of people actually work out a 3 mth notice period.

Either you are paying them for 3 mths garden leave as they gen up on what is needed for their new role and prepare for it or more often they just say "I am handing in my notice and will be leaving in a months time no matter what" and the is little to nothing you can do about it. I saw many candidates have their current employer threaten all sorts about bad references and threats of court action but the reference is irrelevant if itis just going to that new company and they know the circumstances and all you could claim in court would be the difference between the cost of temporary cover and the saved cost of the unpaid extra 2 months pay to leaving employee which is not worth the legal fees (in all the cases i saw)

As an aside - if you got that employee through an agency very very swiftly check your TOB's with them, there may be a rebate clause running to 6 months which would make getting rid of them sooner cost you less (through a rebate on placement fee) or to save paying that back (which agencies & recruiters hate) you may get a free or very heavily discounted replacement hire. Even if out of rebate terms most decent agencies wanting to maintain a relationship will give a discount on a replacement especially if it is due to non performance.

What is wrong with the performance and is there a way you can assess/test that in a replacement to reduce the risk of a repeat ?

thanks and yes am fully aware of the scaled rebates on unsuccessful candidates as have negotiated this with them. The employee simply isn't up to scratch so we will be fair and go through a PIP process even though not legally obliged to do so. 3 months gives us ample time to find a better replacement while still utilising them. We pay this staff far too much money for the output we get and they are unfortunately probably two levels below what we are paying. we have junior staff outperforming them on £30k less.

 

[jalucia]

If you have a case of gross misconduct, you don't have to pay any notice. Maybe you could explore if anything constitutes to that?

fortunately it doesn't constitute that level of problem and is more a standard performance related issue

 

[Newchodge]

If you have a case of gross misconduct, you don't have to pay any notice. Maybe you could explore if anything constitutes to that?

Poor performance is not gross misconduct. Stabbing the manager in the back is grounds for summary dismissal, most gross misconduct is not.

 

[HFE Signs]

Poor performance is not gross misconduct. Stabbing the manager in the back is grounds for summary dismissal, most gross misconduct is not.

Isn’t dishonesty classified as gross misconduct? This is why I said explore, I didn’t suggest poor performance was!

 

[Newchodge]

Isn’t dishonesty classified as gross misconduct? This is why I said explore, I didn’t suggest poor performance was!

Dishonesty may be classed as gross misconduct, but it depends on the circumstances; dishonesty may warrant summary dismissal, but it depends on the circumstances*. But this case is about poor performance.

If I come to work 5 minutes late on one occasion and claim that the bus was late, when it wasn't, that is dishonesty. It does not justofy dismissal.

 

[HFE Signs]

Dishonesty may be classed as gross misconduct, but it depends on the circumstances; dishonesty may warrant summary dismissal, but it depends on the circumstances*. But this case is about poor performance.

If I come to work 5 minutes late on one occasion and claim that the bus was late, when it wasn't, that is dishonesty. It does not justofy dismissal.

Again, the reason I said explore

 

[IanSuth]

Check the background carefully if working at 2 levels below where they should be for the £, never know the cv may have inflated experience, if it has then you can negotiate a swifter cheaper exit as officially it is fraud by misrepresentation.

 

[Scott DLE]

Let’s say you didn’t give them the 3 months contractual notice pay. What the employee can do is go to ACAS. But:

All ACAS can do is say you have to pay the 3 months. So no harm in trying. Plus that can take months and they won’t get anywhere near a tribunal as ACAS always do that intermediaries thing.

 

[Newchodge]

Let’s say you didn’t give them the 3 months contractual notice pay. What the employee can do is go to ACAS. But:

All ACAS can do is say you have to pay the 3 months. So no harm in trying. Plus that can take months and they won’t get anywhere near a tribunal as ACAS always do that intermediaries thing.

Rubbish. ACAS has to start with an attempt at conciliation. If nothing happens it goes to tribunal and it will be an open and shut case.

 

[Scott DLE]

How’s it rubbish? That’s what I said! I have dealt with ACAS before and won before any tribunal. The only thing they can do even if it went to a tribunal is make you pay the notice period. That’s it! They can’t fine you any more than that.

 

[Newchodge]

How’s it rubbish? That’s what I said! I have dealt with ACAS before and won before any tribunal. The only thing they can do even if it went to a tribunal is make you pay the notice period. That’s it! They can’t fine you any more than that.

You have changed your tune. ACAS are not about winning or losing. The employee can take the employer to tribnal to ge the notice money they are legally entitled to. Why waste the costs involved in doing that?

 

[Trundle]

Suffice it to say, the interview process needs looking at too, as well as the competence of those interviewing.

I was in a similar position once where the interviewers recruited someone into our team who was so bad we wondered if the interviewers had been awake during the interview!