Dismissal for poor performance

The Workers' Statute indicates a series of objective causes for which the employer can terminate the employment relationship with a worker with more beneficial conditions than in other cases. One of them is the employee's poor performance.

However, dismissal for underperformance is often particularly sensitive and complex. After all, it involves assessing the employee's productivity and efficiency, which can often be somewhat subjective. Therefore, we would like to address this issue in depth here.

What is meant by dismissal for low productivity?

First of all, we must define this concept. Dismissal for underperformance is an employer's right when the employee does not reach the levels of productivity and efficiency expected by the business, which negatively affects its economic and operational situation.

Let's take a simple example to understand it better. Imagine a worker on an assembly line for a certain electronic device. While the monthly average of his colleagues is 250 units per month, his is only 125 units per month.

Since this is an average, it is understood that the worker should be close to it. Moreover, being well below this average, he slows down and hinders the work of the other parts of the assembly line, which depend on his work to finish the product. This case could give rise to dismissal for low productivity, which is perfectly justifiable in an objective manner.

But how do you prove dismissal for underperformance?

This is undoubtedly the most complicated part. In order for the employer to be able to dismiss for underperformance, it is necessary that:

• The performance expectations are reasonable, objective and known to the employee, as well as comparable to those required of other colleagues in the same category.
• A detailed record of the employee's performance has been kept, including productivity reports and periodic evaluations.
• The employee has been previously warned of his or her poor performance and the need to increase it, and despite this, has not improved his or her performance.

The company has offered the employee the support, training and resources needed to improve their productivity.
The latter is particularly important, as you can only be dismissed for underperformance if you are solely responsible for it, i.e. if the company has done everything it can to help you achieve your goals and you still have not done so.

Compensation in dismissal for poor performance

Depending on the case, dismissal for poor performance may or may not give rise to compensation:

• Disciplinary dismissal for underperformance: in this case, the company understands that the employee does not reach the productivity targets of his own free will. In other words, he/she underperforms, even though he/she has the tools and skills to do so. In this case, he/she would not be entitled to compensation.
• Dismissal for objective reasons: the company can also understand that the worker's poor performance is due to a lack of capacity. For example, because in order to increase their productivity they need to acquire knowledge that is not within their reach due to their level of training. In this case, he/she would be entitled to compensation of 20 days' salary per year of service up to a maximum of 12 monthly payments.

Challenging dismissal for low productivity

The truth is that most companies opt for disciplinary dismissal for low performance, as it offers them considerable economic advantages. Both in this case and if the dismissal is for objective causes and the worker does not agree, he/she has the right to challenge it in court.

If both parties do not reach an agreement in the conciliation process, it will be a judge who will decide whether the dismissal is in accordance with the law or not. In particular, he or she will decide whether it is

• Procedent: this implies that the judge agrees with the company and that the dismissal is maintained under the conditions set by the employer.
• Unjustified: the opposite is the case. The judge agrees with the worker on the grounds that there are insufficient grounds for dismissal for objective or disciplinary reasons and obliges the employer to pay compensation of 33 days per year worked with a maximum of 24 monthly payments.
• Null and void: if the judge considers that the dismissal violates the worker's fundamental rights. For example, if the poor performance is related to pregnancy, breastfeeding or care of dependents. In this case, the employer will have to reinstate the employee and pay the corresponding processing wages.

If I am dismissed for poor performance, am I entitled to unemployment benefits?

Yes, in all cases, regardless of whether it is a disciplinary or objective dismissal. However, you will have to meet the minimum requirement, which is to have paid contributions for a minimum of 360 days in the last six years prior to dismissal.

You also have the right to receive the settlement, which is made up of the days of holiday not taken that correspond to you, the days of salary for the current month and the proportional part of the annual bonus payments.

In any case, if you have been dismissed for poor performance and you do not agree, the best thing to do is to contact an employment lawyer specialising in dismissals who will study your case, advise you and defend your interests. Contact us and find out how we can help you.