25 Oct 2011
Should unproductive workers lose their right to unfair dismissal?
Following news today of a leaked government report recommending unproductive workers should lose their right to unfair dismissal, Yvonne Gallagher, head of Lawrence Graham's employment practice, said:
"The idea seems to be to make it easier to dismiss on performance grounds so as to avoid the need for lengthy performance management processes which remain open to scrutiny by tribunals - no matter how thoroughly they have been carried out. It is this factor which gives concern to employers who can have no certainty as to the likely outcome or cost.
"The obvious weakness, in any proposal to simplify the dismissal process where performance is an issue, is that of proving satisfactorily that poor performance was indeed the reason for the dismissal, and not, for example, sex or race or disability.
"If the unfair dismissal protection is removed from performance then we can expect to see more discrimination claims. As these are based on mandatory EU legislation, the government cannot easily amend or limit them. Even an attempt to reverse the burden of proof so that it is for the employee to show that performance was not the real reason for the dismissal is likely to fall foul of EU case law which provides that where a prima facie case of discrimination is presented, the burden of proof falls on to the employer."