Efficient performance management
In the cases where staff performance is inadequate, the employer may choose to give a verbal warning first - typically in the form of an interview with the employee where the employer may also prepare a Performance Improvement Plan (PIP). The purpose of the PIP is to define the measures that may help the employee improve his or her performance.
However, the employer is not required to give a verbal warning first, and neither a verbal warning nor a PIP can generally replace a formal written warning. Even though it is in times of crisis often a good idea to reduce the pre-dismissal procedures, it is recommended to give a verbal warning. This allows the employer to identify the problem. The employer may also draft the PIP so that it can replace a written warning.
Written warning
If the employer wants to secure its right to dismiss the employee in the event that the employee fails to improve his or her performance, the employer must give the employee a written warning. A written warning must be clear and precise and explain what the employer is dissatisfied with and what the employee can do to improve his or her performance. Finally, it must fix any deadlines for follow-up on the warning and describe the consequences of non-compliance with the warning.
There is no clear rule governing the period of time that must elapse from the formal written warning until a dismissal can be deemed to be fair. The employee must be given a real chance to improve his or her performance before being dismissed. In that connection, it should also be assessed whether it is necessary to give the employee several written warnings before a dismissal. This may be the case if the employee has been employed with the organization for a long time and has previously performed flawlessly, but is no longer able to keep pace with the changes required by developments.
Other considerations
A dismissal based on the employee's failure to perform is a relatively mild ground for dismissal. Such a ground makes it more important to obtain evidence than if the dismissal had been based on the employee's incompetence, e.g., the employee does not meet language requirements. Nevertheless, it may be necessary to state failure to perform as the ground for the dismissal if the dismissal cannot be justified by the organization's own affairs or if it is considered risky.
It is worth noting that employers who fail to initiate a performance management procedure as against an employee with failing performance may face financial consequences if the employee has a claim for compensation in case of unfair dismissal. Under the Danish Salaried Employees Act, this requires at least one year's employment whereas it requires nine months' employment if the employee is appointed on a group contract basis.
iuno's opinion
If an employee fails to perform, it is important that the employer points it out to the employee. Then the employee is made aware of the employer's expectations to the employee, and at the same time, the employer is, with a formal written warning, secured evidence that the employee has been given notice of the consequences of his or her failure to perform - evidence that may be necessary if the employee is later dismissed.
An efficient performance management system gives the employer a chance to ensure that its employees are fit for work and ultimately that the employer maintains its competitiveness.