Point of clarification: I assume you’re talking about constructive dismissal claims by the employee against the employer, rather than the customer. In other words, the concern is that if the employee were removed for poor performance, he/she may claim adverse impact on his/her employment justifying constructive dismissal.
The basis for constructive dismissal is unilateral imposition of an unfavorable change or term of employment by the employer. So, if I have an accurate read on the situation and what you’re asking, I’d say that drawing up a clear and fair performance clause and notifying affected employees of its existence may help a bit. A more effective way to insulate against constructive dismissal risk, IMHO, would be to take the extra step and secure the employee’s actual agreement to the clause. Such agreement, as long as it’s fairly negotiated, would take away the argument that the change was unilaterally imposed by the employer.
Please understand that this is just a personal opinion and not a substitute for legal counsel. So if significant business interests are on the line, talk to a lawyer before making a decision. Glenn
