The £22k risk

The £22k risk of not following your internal process

Whilst there is a code of practice for disciplinary dismissals that employers must follow, dismissals for performance reasons do not follow the same code, nor do they have their own code.

So, you may be fooled into thinking that you don’t have to follow any structured procedure for a performance dismissal.

But you would be wrong.

There is still a requirement to follow a fair and reasonable process, and a recent case ruled that despite clear performance issues, a dismissal was unfair as internal procedures, namely providing formal warnings, had not been followed.

Anita Briggs began working as a Digital Media Content Producer at the National Museums of Scotland in June 2009.

Her role involved planning and maintaining content for the museum’s social media and website.

Initially, things were fine and up to 2020 Briggs received fairly positive performance reviews.

In 2021 Briggs got a new line manager, Russell Dornan.

Dornan had concerns with Briggs’ performance and, after meeting with Briggs in May 2022, an informal Performance Improvement Plan (PIP) was put in place to address his concerns around following procedures and attention to detail.

However, Dornan did not see sufficient improvement.

Briggs was dealing with personal circumstances, and so both parties agreed to a second PIP in November 2022, as well as a stress risk assessment.

Dornan noted that, should the second PIP not prove successful, Briggs would be invited to a formal meeting.

Performance did not improve, and between June to August 2023, Briggs only published two pieces of content, and one had undergone significant amendments before issue.

Briggs was then off work with stress in September and part of October, leading other members of the team to pick up her work, including the Head of Digital Media, Hannah Barton.

Dornan left the business, and Barton took over Briggs’ management.

On Briggs’ return to work, Barton confirmed that Briggs had failed to meet the second PIP requirements as there were still errors, missed deadlines and failures to follow processes.

Barton informed Briggs of a third formal PIP process to take place and, if unsuccessful, this could lead to dismissal.

During the third PIP, Briggs continued to provide minimal content; in December she produced six social media posts and a content plan, compared to 73 posts published by a colleague.

A meeting was also held on the 12th December 2023 with Briggs, Barton, a member of HR and a Trade Union representative.

Briggs stated she had no issues with the demands of the role and accepted she was not performing as needed.

She admitted that the main stress for her was the PIP, which was confirmed by another stress risk assessment.

As Briggs failed the third PIP, Barton invited her to attend a formal hearing on the 12th February 2024, chaired by the Director of external relations, Helen Ireland.

The next day Briggs was terminated based on lack of capability.

Briggs appealed the decision on multiple grounds, however, the Director of National Museums Scotland, Chris Breward, upheld the decision to terminate.

At Tribunal it was found that the Museum did not follow their own internal policy which was to provide formal written warnings to Briggs prior to dismissal.

As a result, Briggs was awarded £22,210.75 in compensation.

The key takeaway for employers is that a fair and reasonable process must be followed, even in the case of performance dismissals and where you have your own performance management procedures, these must be followed to the letter.