How to Fire a Non-Performing Employee (UK/FR/AU/NZ)

Performance-based dismissal is among the most procedurally demanding areas of employment law. Get the procedure wrong and you face unfair dismissal claims with substantial compensation regardless of how poor the performance was. This troubleshoot guide walks the workflow for the United Kingdom, France, Australia, and New Zealand — the four jurisdictions where performance management procedures are most prescriptive.

The universal principles

All four jurisdictions require:

1. Clear performance standards known to the employee.
2. Documented warnings about the gap between performance and standard.
3. Reasonable opportunity to improve — typically with a Performance Improvement Plan (PIP).
4. Fair process for the termination decision — meeting, opportunity to respond, support person.
5. Documented decision with substantive and procedural justification.

Skipping any step exposes the employer to a claim that the dismissal was unfair regardless of the underlying performance.

United Kingdom

Capability process under ACAS Code. The framework is the ACAS Code of Practice on Disciplinary and Grievance Procedures plus Employment Rights Act 1996, s.98.

Step 1 — Establish the standard. Job description, KPIs, performance reviews. Document expected standards.

Step 2 — Informal feedback. Where performance falls short, raise concerns informally first. Document the conversation in a follow-up email.

Step 3 — Formal first warning. If performance doesn’t improve:

• Invite the employee to a formal capability meeting.
• Provide the right to be accompanied (companion or trade union representative under ERelA 1999, s.10).
• Discuss the gap, hear the employee’s response.
• Issue a first written warning with specific improvement objectives and a review date (typically 3-6 months).

Step 4 — Formal second warning if needed.

Step 5 — Final written warning. Last opportunity. Specifies that further failure will lead to dismissal.

Step 6 — Capability meeting for dismissal.

• Notice in writing of the meeting purpose.
• Right to be accompanied.
• Hear the employee fully.
• Notice of decision in writing with reasons.
• Right of appeal (separate decision-maker).

Step 7 — Appeal hearing. A different manager hears the appeal. Failure to offer an appeal can increase compensation.

Time: Capability process typically takes 3-6 months from first warning to dismissal.

Source: ACAS Code on Disciplinary and Grievance Procedures; Employment Rights Act 1996.

France

Cause réelle et sérieuse. Under Code du Travail, Article L1232-1, performance-based dismissal must be for “real and serious cause” — typically termed insuffisance professionnelle.

Step 1 — Establish the standard. Job description (fiche de poste), objectives (entretien d’évaluation), and clearly communicated expectations.

Step 2 — Document the deficiency. Specific, dated examples of underperformance. Insuffisance professionnelle is objective — not opinion. Examples must be measurable.

Step 3 — Discussion with the employee. Often an entretien professionnel (every 2 years statutory) plus informal management discussions documented in writing.

Step 4 — Action plan. A formal action plan with objectives and a review date is recommended (although not statutorily required for insuffisance professionnelle).

Step 5 — Convocation à entretien préalable. Written summons to a preliminary dismissal meeting. Must be sent at least 5 working days before the meeting. The summons must specify:

• Purpose of the meeting.
• Date, time, and place.
• Employee’s right to be accompanied.

Step 6 — Entretien préalable (preliminary meeting). Held by HR / management with the employee. Employee may be accompanied by another employee or, if no employee representative exists, by an external advisor (conseiller du salarié) listed by the prefecture.

Step 7 — Lettre de licenciement. At least 2 working days after the entretien préalable. Letter must:

• State that the employer has decided to dismiss.
• Specify the reasons (motifs précis).
• Include details of severance and notice periods.

Step 8 — Notice period. Statutory minimum varies by tenure (1 month under 2 years, 2 months 2+ years, more for senior employees).

Macron Scale risk. If the dismissal is found to lack real and serious cause, compensation is capped per Article L1235-3 by tenure (1 month at <1 year up to 20 months at 30+ years).

Time: Procedural minimum 3-4 weeks from convocation to dismissal letter, plus notice period. Total typically 6-12 weeks.

Source: Code du Travail, Article L1232-1 et seq; Article L1235-3.

Australia

Fair Work Act 2009 framework. Under s.387, a performance-based dismissal must consider:

• Whether there was a valid reason related to capacity.
• Whether the person was notified of the reason.
• Whether the person was given an opportunity to respond.
• Whether unreasonable refusal of a support person took place.
• Warnings about unsatisfactory performance.
• Size of the employer (smaller may have less rigorous procedures).

Step 1 — Establish the standard. Position description, KPIs, performance reviews.

Step 2 — Formal feedback. Document concerns in writing.

Step 3 — Informal warning. Conversation about performance, documented.

Step 4 — First formal warning. Written warning describing:

• The performance issue.
• Improvement required.
• Timeline for improvement.
• Consequence of non-improvement.

Step 5 — Performance Improvement Plan (PIP). Often used for senior or salaried employees. Specifies:

• Specific objectives.
• Resources and support provided.
• Review milestones.
• Consequences if not met.

Step 6 — Final written warning if performance doesn’t improve.

Step 7 — Show cause meeting. Final opportunity for employee to provide reasons why dismissal should not occur.

Step 8 — Decision and dismissal. Decision in writing with reasons. Notice period under National Employment Standards (NES) or relevant award/agreement.

Time: Typically 3-6 months from first warning to dismissal.

Forum: Fair Work Commission within 21 days post-dismissal for unfair dismissal claim.

Source: Fair Work Act 2009, s.387.

New Zealand

Just cause and fair process. Under Employment Relations Act 2000, s.103A, a dismissal must be for a fair reason and through a fair procedure.

Step 1 — Establish the standard. Job description, agreed objectives, performance management system.

Step 2 — Informal discussions. Document specific concerns and improvements needed.

Step 3 — Formal performance management meeting. Notice in writing, opportunity to respond, right to a support person.

Step 4 — Performance Improvement Plan. Specifies:

• Performance gap.
• Improvement objectives.
• Support and resources.
• Review timeline.
• Consequence of non-improvement.

Step 5 — Review meetings. Regular reviews with documented progress.

Step 6 — Show cause meeting. Notice of intention to consider dismissal. Right to respond.

Step 7 — Decision. In writing with reasons. Notice as per employment agreement.

Time: Typically 3-6 months from first warning to dismissal.

Forum: Personal grievance to be raised with employer within 90 days under ERA s.114. Mediation, then Employment Relations Authority.

90-day trial provision. Under ERA s.67A, if the employee is in a properly executed 90-day trial period, performance-based dismissal does not give rise to an unjustified dismissal grievance.

Source: Employment Relations Act 2000, s.103A; Employment New Zealand guidance.

The PIP Done Right

A Performance Improvement Plan is the central tool across all four jurisdictions. A well-constructed PIP includes:

• Specific objectives — measurable, time-bound.
• Resources and support — training, mentorship, tools.
• Review milestones — weekly or fortnightly check-ins.
• Documentation — written records of each review.
• Consequence — clear statement that failure may lead to dismissal.

Length: typically 8-12 weeks for non-senior roles, 3-6 months for senior roles.

PIP failure should not be a surprise. The employee should know exactly where they stand at each review.

Performance vs Misconduct vs Redundancy

Don’t confuse:

• Performance (capability) — work quality, skill, output. Requires PIP.
• Misconduct (conduct) — deliberate breach of rules. Can be dismissed faster (gross misconduct may justify summary dismissal).
• Redundancy — role no longer needed. Different procedure entirely.

Treating performance as misconduct fast-tracks unfair dismissal claims. Treat as misconduct only when there is a deliberate, willful, or reckless act.

Dialogue: an HR director runs a performance dismissal

🐣 Chick: “Sales rep underperforming in Sydney, London, Auckland. Same playbook?”

🐮 Cow: “Same principles, jurisdiction-specific procedures.”

🦉 Owl: “Sydney — formal warning, PIP for 12 weeks, weekly reviews, final warning, show cause meeting, decision. 4-5 months total.”

🐮 Cow: “London — capability meetings, ACAS Code. First, second, final warnings. PIP. Decision meeting with right to be accompanied. Appeal.”

🐣 Chick: “Auckland?”

🐮 Cow: “Performance management with PIP. Show cause. Notice in writing. ERA s.103A standards.”

🦉 Owl: “And document, document, document. Most failed defenses are about procedural shortcuts. The substance is usually fine; the process kills the case.”

🐣 Chick: “What about Paris?”

🐮 Cow: “Even more rigid. Action plan, then convocation, then entretien préalable 5 working days later, then lettre de licenciement 2 days later. Plus notice period. Total 8-12 weeks minimum.”

🦉 Owl: “Macron Scale caps the downside but procedural failures still hit hard.”

Common mistakes

No documented performance standard. Without it, the employee can argue they didn’t know what was expected.

Verbal-only feedback. Conversations not documented are conversations that didn’t happen, in legal terms.

No PIP. Going from informal feedback to dismissal is a procedural failure in all four jurisdictions.

Insufficient improvement window. A 2-week PIP for a complex role is often deemed unreasonable.

No support and resources. PIP must include genuine support, not just objectives.

Surprise dismissal. The employee should not be surprised by the dismissal. Surprise indicates inadequate process.

No support person at meetings. Most jurisdictions require offering this.

No right of appeal (UK). ACAS Code expects an appeal opportunity. Failure increases compensation.

Treating capability as conduct. Performance issues require PIP procedure, not summary dismissal procedure.

Discrimination overlay. Performance dismissal cannot be motivated by protected characteristics. Document objective performance gaps.

Closing notes

Performance dismissal is procedurally rigorous in all four jurisdictions. The substantive justification (poor performance) is rarely the issue in litigation; the procedural failures are. For multi-country employers, the safest approach is to follow the most rigorous procedure (typically France or Australia) as a baseline and adapt for jurisdiction-specific quirks. Investment in PIP development, manager training, and HR documentation produces durable defenses.

A Gyoseishoshi (行政書士) prepares bilingual PIP templates, warning letter templates, and procedure manuals. Locally-qualified employment lawyers should advise on contested cases, especially senior dismissals, redundancy structures, or where discrimination is alleged.

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Disclaimer

Legal information, not legal advice. MmowW Scrib🐮 is operated by a licensed Gyoseishoshi (行政書士) office in Japan. We are not UK solicitors, French avocats, Australian lawyers, or NZ employment specialists. For performance dismissal proceedings, consult locally-qualified counsel.

Sources

• UK ACAS Code on Disciplinary and Grievance — https://www.acas.org.uk/code-of-practice-on-disciplinary-and-grievance-procedures
• UK Employment Rights Act 1996 s.98 — https://www.legislation.gov.uk/ukpga/1996/18/section/98
• France Code du Travail Article L1232-1 — https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006901118/
• Australia Fair Work Act 2009 s.387 — https://www.legislation.gov.au/Details/C2024C00210
• New Zealand Employment Relations Act 2000, s.103A — https://www.legislation.govt.nz/act/public/2000/0024/latest/whole.html
• Employment New Zealand performance management — https://www.employment.govt.nz/workplace-policies/performance-management/