Dealing with an unreliable employee and employment rights

An unreliable employee can take up a lot of management time, and wider problems in the workplace when conscientious colleagues have to cover for them. Due to changes under the Employment Rights Act 2025, protection from unfair dismissal will start much earlier in the employment relationship. Employers therefore need to be ready to deal with this situation effectively, as soon as they notice an employee cannot be relied upon.

The consequences of unreliability are many and varied, including reduced productivity, extra work for colleagues and poor customer service. It also manifests itself in many ways, such as persistent lateness, frequent short-term absence, patchy work performance, missing deadlines or forgetting tasks.

The risk of an unfair dismissal claim is not the only risk to consider when dismissing an unreliable employee. Even if you chose to try to manage the behaviour, rather than dismissing during the early stages, these risks can arise.

What is changing?

From 1 January 2027, an employee with six months’ service will be protected from unfair dismissal. This means employers need to have a fair reason and follow a fair process before dismissing, just as they do now when the employee has two years’ service. The compensation that an employee can claim if unfairly dismissed is currently capped at the lower of 52 weeks’ pay or £123,543. This cap will be removed for dismissal taking effect on or after 1 January 2027.

Having made expectations clear early on, employers need to make good use of a relatively short probationary period, so that an employee’s reliability, performance, attitude and commitment are monitored early on.

Record-keeping and assessing the problem

Line managers need to appraise performance regularly, set clear objectives and explain to the employee how progress and performance will be assessed. One-to-one meetings should be used to identify needs for training or support and to feedback to the employee. Using the appraisal process and documents are helpful for clarity and transparency. If it comes to dismissing an employee, this paperwork should explain the route that led to this decision being taken. This will help defend claims, both for unfair dismissal and discrimination.

As soon as the problem becomes evident, line managers should speak to the employee to explore the causes of them being unreliable. If it looks like the pattern will continue or it seems unlikely that they will meet the required standards without significant management input, the employer might decide on balance it would be better to dismiss and recruit again.

What if we decide to dismiss early?

We can advise you on notice, making payments in lieu of notice and taking into account the statutory notice periods when timing a dismissal before the employee gains the right to be protected from unfair dismissal.

However, there are other pitfalls to look out for within the initial period of six months.

Disability

Even if an employee has not told the employer that they are disabled, employers have to be alert to health conditions or neurodivergence that could be a disability. For example, an employee’s lateness could be caused by an ongoing condition that is worse in the morning. Allowing them to make up the time at the end of the day, could be a reasonable adjustment in some roles. If the condition falls within the legal definition of a disability and action is taken, like giving them a warning, without making a reasonable adjustment, this could be disability discrimination.

Employers should speak to employees early on to find out any relevant wider context. Getting advice from their GP or occupational health advice may be necessary to make an informed decision.

Inconsistent treatment

Consistency is important, not just to maintain respect for leadership but also to minimise the risk of a discrimination claim. An employer might be more lenient about one employee taking lots of odd days or half days off sick because they have more valuable experience and business-critical knowledge compared to another employee. While the employer might ultimately be able to justify this in an employment tribunal, there is also the risk that the different treatment could be judged to be unfair.

For example, if the employer only takes action against an employee with a different protected characteristic (but a similar attendance rate to another employee), the employee may put this down to their protected characteristic, such as their gender or race. This could result in a grievance or claim to the employment tribunal. Accurate records will be important evidence to explain decision-making.

Wrong reason for dismissal

When addressing unreliable behaviour, employers need to consider the appropriate route. Is the issue health-related, poor performance, wilful poor behaviour, a mixture, or another cause altogether, such as a complex family situation? If the employee has or is likely to have protection from dismissal, it is important to follow the right path before dismissing.

At best, following the right policy and process makes expectations clear and gives the employee any support they need. If they use this opportunity to improve, then dismissal becomes unnecessary.  

If dismissal is unavoidable, determining the reason for taking action should lead to following the correct procedure, which helps ensure that the dismissal is fair.

Other options

Regardless of whether or not the employee is protected from unfair dismissal, we can advise you on securing the employee’s exit under a settlement agreement. In exchange for a lump sum payment, the employee gives up the right to take legal action and leaves the business. This can be quicker and gives peace of mind.

How we can help

We can draw up policies and procedures and give you practical advice on the steps you need to follow to ensure a safe dismissal. We will help you manage and mitigate risks.

For further information, please contact Neil Largan in our Dispute Resolution team in York on 01904 624185.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.