Tough Calls: Letting Staff Go When Performance Isn’t There

Letting a member of your team go is one of the most challenging things you have to deal with as a leader in a law practice. The decision is rarely straightforward and incurs an emotional toll on the departing employee, the remaining team members, and you; the decision-maker. It’s a decision you can’t afford to get wrong. One misstep can expose your firm to legal action with potentially severe financial and reputational consequences.

How you handle termination of employment reflects on your firm’s culture and how you are perceived in the sector. This blog post will outline a practical and emotionally intelligent approach to letting staff go legally.

Spotting signs: When underperformance crosses a line

Being able to tell when a performance dip becomes a persistent issue is the key to dealing with underperformance in law firms. Of course, you should be empathetic and ready to offer support. At the same time, you need to distinguish between someone who is going through a rough patch and someone who is consistently underperforming.

Key indicators of persistent underperformance

Here are the warning signs of persistent underperformance you should look out for:

• Multiple instances of missed deadlines or avoidable errors.
• Ongoing concerns about unmet objectives in performance reviews.
• Consistent negative feedback from supervisors, colleagues or clients.
• Decline in work quality or productivity over several months, not due to external pressures.

If you see any of these, it’s vital to step in early. It’s not just a question of operational efficiency but also of meeting your legal obligations as an employer.

Legal duties

UK employment law requires the following steps to ensure procedural fairness:

• Document all concerns as they arise, including dates, examples, and your responses.
• Issue clear, written warnings where improvement hasn’t occurred, and clearly explain to the employee what you expect of them and the consequences if they are not up to scratch.
• Regular performance reviews are important to offer feedback and to provide a timeframe to turn things around. They are also important as evidence that you’ve acted fairly if you have to move on to dismissal.

The broader picture

Ignoring persistent underperformance affects more than just one person’s output. Over time, unaddressed issues can drag down team morale, undermine workplace culture, and degrade client relations. It’s better to address these challenges early before they turn into a crisis.

Legal considerations: What UK employment law requires

UK employment law has clear requirements designed both to protect your employees and help you make fair decisions. Following these requirements will help you to stay within the law and to treat your staff with dignity.

If you want to know how to fire an employee in the UK, read on:

Fair dismissal principles

Under UK law, dismissals must be fair, which means you need a valid reason and a reasonable process. The main grounds for dismissal are conduct, redundancy, and capability (including performance). Simply citing underperformance is not enough. You are required to show that you’ve handled the situation fairly and followed the correct procedure. Refer to the appropriate Advisory Conciliation and Arbitration Service (ACAS) code of practice for the steps you need to take. 

Probation period vs. permanent staff rights

Staff on probation have fewer statutory rights when it comes to unfair dismissal, as they lack the required two years’ service. However, even during probation, you should avoid discrimination and keep a record of support you offered. Permanent staff have full protection and you will have to follow correct procedure including warnings, documented support, and a fair performance review process.

Performance improvement plans (PIPs)

Implementing a Performance Improvement Plan (PIP) shows you’re committed to fairness and staff development. Your PIP should have clear objectives, frequent check-ins, and support (in the form of training or mentoring). Ensure your employee understands what’s expected of them and give them a fair opportunity to improve before taking further action.

Reasonable steps before termination

Before ending someone’s employment due to underperformance, UK law requires you to:

• Clearly communicate your concerns and expectations to them.
• Offer reasonable time and resources for them to improve.
• Consider if they have any mitigating circumstances like health or workload issues.
• Explore alternative solutions such as redeployment.

While these situations are never easy, following ACAS best practice and acting with compassion and insight ensures your conduct is appropriate both as an employer and as a human being. 

How to let someone go: A step-by-step, compassionate approach

Letting someone go is never easy and can be highly stressful for everyone involved. Don’t just follow the usual legal advice for firing staff. You also need to proceed with tact and empathy. Here’s how to do it:

1. Structure the conversation

Preparation is key:

• Document everything: Collect the evidence including performance reviews, formal warnings, improvement plans, and any related correspondence.

• Plan your script: Be direct but compassionate: “We’ve previously discussed the improvements we wanted, but unfortunately we haven’t seen the progress we were looking for.” Refer to the evidence without making personal judgements.

• Allow them to react: They may be shocked, upset, or defensive. Give space for them to ask questions.
• Outline next steps: Inform them what happens next including final pay, benefits, and reference requests.

2. HR do’s and don’ts

Follow these pointers to keep HR on your side:

• Do: Uphold confidentiality, ensure every step is documented, and maintain a respectful tone.
• Don’t: Delegate the conversation to someone unfamiliar with the individual’s work, get sucked into arguments, or share the details with the wider team.

3. Offering support

You may be letting someone go but that’s not to say you shouldn’t support them:

• Direct them to career transition resources or outplacement services.
• Offer to give an employment reference that’s honest but fair.
• If you have an Employee Assistance Programme (EAP), let them know about it, along with any third-party mental health support or counselling programmes available.

Avoiding the issue: How to build a performance-positive culture

Handling poor performance in a law firm in the UK is never going to be fun. You probably don’t want to be having these difficult conversations in the first place. Well, there’s something you can do about it.

Follow these preventative tips:

• Clear expectations: Setting expectations shouldn’t be a one-off event. Review and realign expectations as roles evolve with your business. This keeps everyone focused on what needs to be done to drive results.

• Ongoing feedback: Making feedback part of your day-to-day, rather than reserving it for periodic reviews, keeps everyone supported and on track.
• Thorough onboarding: Every penny invested in onboarding reaps dividends. When new hires understand performance standards and where to get help, they’ll be able to hit the ground running.

Leverage legal tech:

• Legal tech, particularly practice management platforms, can help you create accountability and visibility. 
• Tools like Clio allow you to track performance metrics across your firm including utilisation, realisation, and collection rates.  
• These insights can be used to identify areas for improvement before issues set in and provide evidence for performance improvement plans, or termination (as a last resort).
• Clio’s integrated system gives you the information you need to navigate challenging discussions and make fact-based decisions.

Final thoughts – It’s a leadership test, not a personal failure

Letting someone go due to performance issues is one of the true challenges of leadership. However, if handled thoughtfully, it can be a sign of ethical management. No one wants to be seen as a bad person. The right way to do this is by making decisions that are fair and in the best interests of your firm, your team, and also the individual involved.

Draw on not just your legal and procedural knowledge, but also your emotional intelligence and leadership values. By acting with clarity and fairness, you can get through this in a way that treats everyone involved with dignity and respect.

Want to streamline performance tracking? Discover how Clio helps law firms lead with clarity. 

Further reading: Discipline and Grievances at work: the ACAS guide.