The recent Employment Appeals Tribunal decision of Berthold v Google Ireland Limited [UD2147/2011] which awarded €110,000 compensation to the claimant demonstrates how difficult it can be to implement dismissal for “persistent underperformance”.

BACKGROUND
The claimant worked for a company that was bought by Google and had never had any performance issues prior to the take-over. In 2010, the claimant was placed on a performance expectation plan following what Google said was her unsatisfactory performance. A written warning issued in November 2010 and the claimant was placed on a performance improvement plan (PIP) in December 2010 following which she was issued with a final written warning in January 2011. The claimant’s employment was terminated in May 2011 following a disciplinary hearing, but the claimant did not appeal this decision on the basis that she would be “shot down”.

REASONABLENESS OF THE EMPLOYER'S CONDUCT
The Unfair Dismissals (Amendment) Act 1993 provides that a tribunal may consider the “reasonableness … of the conduct of the employer (whether by act or omission) … in relation to the dismissal”. Account will also be taken of any custom and practice in the employment concerned and the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) relating to dismissals.

Section 6 of the Unfair Dismissals Act 1977 sets out the onus of proof in that all dismissals are deemed “unfair” unless there are substantial grounds justifying the dismissal.

Cases such as Frank Shortt v Royal Liver Assurance Limited [[2009] ELR 240] illustrate that a court will take an overall view of a disciplinary process and its application in determining fairness. In that case the court found, whilst the disciplinary process was not perfect, when viewing it as a whole, it was not conducted in breach of the plaintiff's rights.

In the present case, Google claimed that it implemented a fair dismissal on the grounds of competency. However, the claimant alleged that Google set unrealistic time-frames and unachievable goals for the claimant and that circumstances beyond her control led to adverse reports which were then used against her as a factor to end her employment.

In order to defend the case, Google had to show that it acted reasonably in dismissing the claimant having regard to all the circumstances. It also had to show that the claimant was afforded her constitutional right to fair procedures. No evidence was given that Google considered any alternative option to dismissal, such as demotion, despite there being a precedent for such a sanction as two Google managers had previously been demoted for performance issues.

ALL THE CIRCUMSTANCES
In Kane v Willstan Racing (Ireland) Group [UD1263/2008], the Tribunal considered the issue of reasonableness and went on to say that “this must be considered with reference to all of the circumstances of the case especially where there have been changes to the terms, conditions or personality of the workplace which the employee may find difficult to accept.”

It appears from the claimant’s evidence that Google sought to impose its system of performance ratings on all employees arbitrarily, even where the demands being placed on the claimant appeared to be increasing.

The claimant gave evidence that Google operated a bell curve system for measuring performance, which was subjective and that her manager was “determined to ensure that she would not succeed”. Despite the claimant's best efforts "no matter what she did it was never good enough”.

Despite the fact that Google followed a PIP process, which included coaching and other supports, and a series of warnings were given, the EAT was not satisfied that Google followed fair procedures and found the decision to terminate the claimant’s employment was not reasonable. The Tribunal held that the claimant was unfairly dismissed and awarded her compensation of €110,000.

IMPLICATIONS FOR EMPLOYERS
All employees have a responsibility to meet the standards required by their employer. However, this case is a stark example of the potential pitfalls for an employer seeking to dismiss an employee based on his/her performance or capability.

It is important for employers to tailor performance management processes and related disciplinary processes to ensure that they are objective, reasonable and appropriate in all the circumstances.

Employees should be supported in meeting achievable standards of performance and made aware of the consequences of failing to achieve these standards. At each stage in the process, an employer must ensure that it acts reasonably before taking any steps to penalise employees for under-performance and dismissal should be a last resort having first considered other alternatives.

What is reasonable will depend on the particular circumstances in each case and legal advice may be required to avoid potential liability.