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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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I am a new Church of England churchwarden. I have just read

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I am a new Church of England churchwarden. I have just read about TUPE in regard to an answer to another question. Our church employed a cleaner for some years but because she wasn't very good we them employed a company to manage her. The company has just given us notice to terminate the contract so we're back to square one. I would like to put in place various management tools such as a clearly defined checklist of cleaner's duties, which I would then be able to check periodically had been carried out. I would also like to introduce a clocking in and out machine - the reason being that she says she sometimes starts work at 4.30 am but we have no way of confirming whether she has attended, or not. From the quality of her work we would guess not.

The checklist would not contain any task other than might be reasonably expected of a church cleaner. Please can someone say whether there is any process that we would have to go through to introduce these tools? My hope would be that a clearly defined role would boost the cleaner's performance.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know if by introducing these management tools you are going to change the cleaner's contract?

Customer: Hi Ben
Customer: we don't intend to but I might be incorrectly assuming that inadequate performance against a reasonable set of measures would enable me to place her on warning of dismissal and then to dismiss if her poor performance continues. If I am able to go along those lines how many warnings would I need to give her please? My hope is that the performance measures and clear tick box approach to her required tasks will cause a radical improvement in her approach to the job. I don't know for sure that she has a contract of moyment. What if she doesn't?

Hi Ben - I'm probably missing something but your answer appears to be a repeat of my question? In other words I can't see your reply. Hope I'm not being totally thick.


Ahaa - I see by the timing that you've repeated your last question and maybe it wasn't clear in my reply 'we don't intend to' that we don't intend to alter the cleaner's working hours or pay or anything else. We just want her to perform as a cleaner. I asked the previous warden whether she had had a contract with the church before the cleaning company took over her contract but he didn't know. I will be asking the cleaning company for a copy of their contract with her on Monday. I imagine that we would anyway have to comply with the terms of that contract. She IS currently paid a lot more than the cleaning company's other cleaners and therefore wasn't going to get a pay rise until there was parity - and she knew that to be the case. But the amount of pay doesn't bother us as much as her inadequacy as a cleaner - resulting in lots of groups who use our church hall complaining to us.

Ben Jones :

Hello, sorry I was offline by the time you replied and have only just come back online. As an employer you have the right to introduce certain performance measures and to eventually consider formal action if an employee fails to satisfy them. However, you cannot just go ahead with dismissal straight away and need to ensure that you act fairly and reasonably in the circumstances.


An employee's poor performance in their job is a potentiality fair reason for dismissal under section 98(2)(a) of the Employment Rights Act 1996, as it would amount to lack of capability.


For the purposes of an unfair dismissal, "capability" should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality. The capability must also relate to the work that the employee was employed to do. A dismissal may be fair even if the employee is still able to do part of their job".


In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given realistic targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.


Generally, the reasonableness of such dismissals would be measured against the following criteria:

  • Did the employee know what was required of them;

  • Did the employer take steps to minimise the risk of poor performance;

  • Was a proper appraisal conducted and was the problem identified;

  • Were training, supervision and encouragement provided;

  • Did the employer warn the employee of the consequences of failing to improve;

  • Did they give the employee the chance to improve;

  • Did the employer consider alternative employment.


Only after you have considered the above can you eventually move towards a potential dismissal and you can really only do so if you have given the employee reasonable opportunities to improve but they have failed to do so.


I would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you


Thanks Ben - that's just what I needed. We don't want to dismiss her - we want her to do her job, hence the check list etc.


Very much appreciated and with kind regards



Ben Jones :

My pleasure and all the best


Hi Ben


I'm pretty sure I did this earlier but of course I'll do it again.

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