Performance issues

It’s not uncommon to be facing a complaint from your employer that your performance at work is not up to scratch. Perhaps you may be missing sales or other business targets, or you could be making mistakes in your work. Your employer should give you an opportunity and the support to improve.

Ultimately, it could be grounds for your dismissal.

What should my employer do?

Your employer must show they have followed a fair procedure if they want to dismiss you for poor performance. It is not enough to merely say you are not up to scratch. You may have a claim for unfair dismissal.

Your employer may wish to address their concerns informally to start with, before going down a formal route. These initial discussions would not usually appear on your disciplinary record.

If a formal route is taken then the Acas Code of Practice  provides guidance to ensure that performance issues are dealt with fairly. Your employer may have their own specific policies, and if this is the case, they should be at least what is recommended by the ACAS code.

Although the Acas code is not legally binding, Employment Tribunals consider it as a benchmark when determining whether a performance dismissal is fair. An Employment Tribunal can increase your damages as a penalty for them not following the Code. Most employers therefore do follow at least the minimum required process. This is often called a Performance Improvement Plan (‘PIP’):

1. Your employer will investigate your poor performance

Before taking any action, your employer should investigate to establish the facts and verify any poor performance allegations made against you.

This can involve reviewing your appraisal records or monitoring your work. The investigation might uncover that the underlying reason for your poor performance is in part, the fault of your employer – perhaps you have not received adequate training. Dismissing you in these circumstances could be unfair.

2. You should be informed of what the problem is and notified of a formal meeting

If there is case to answer, you should be notified of this in writing and be told the nature of the poor performance and its possible consequences. You should also be provided with supporting evidence and be given the right to be accompanied to the meeting by a work colleague or a trade union representative.

3. You should be given a warning about your poor performance and an opportunity to improve

If your performance is unsatisfactory, you would normally receive a first written warning setting out the nature of the poor performance together with what you are required to do to achieve the required standard and by when. Your work should be properly reviewed and monitored during this time. You may be placed on a performance improvement plan.

What is a reasonable timescale may depend how long you have worked there and the extent of the underperformance and the effect which the underperformance has on the business.

You should also be informed of the consequences of a failure to achieve satisfactory performance in the future – usually a final written warning or in some circumstances, dismissal if you are at the final written warning stage.

4. You should be given the right to appeal

If you are not happy with your employer’s decision, you have the right to appeal.

I don’t agree with my PIP. Should I still sign it?

If you do not agree with the performance process, do not sign it. Signing, or going along with it without protesting, could be seen as you accepting the allegations. It will be much more difficult to defend your position if you have already signalled your agreement to the process. Take early legal advice before you do anything else. Call us for free on 08000 614 631 in confidence and without obligation.

Identifying an unfair Performance Improvement Plan

As specialists in employment law, we instinctively know when something isn’t right.

If you have been with your employer for many years without issue, the introduction of a PIP could be an indicator of something else.  A personality clash with a manager is often a giveaway. Many of our clients who are put on a PIP can cite an ulterior motive which has nothing to do with the standard of their work.

The terms of the PIP itself may provide a clue. A PIP that sets unrealistic targets and/or timeframes for improvement lends weight to the argument that you are being set up to fail.

If you are part of a team doing similar roles and others with the same standard of work have not been selected for a PIP always looks suspicious.

If redundancies are being made and you find yourself on a PIP based on unfounded allegations, could your employer be looking to avoid making a redundancy payment?

Are there alternatives to a performance improvement process?

If your situation cannot be resolved informally with HR, it is worth considering raising a formal grievance. The PIP process might be put on hold once a grievance is started.

It is often possible to negotiate an exit from the business and leave your employment on mutual terms under a Settlement Agreement. In some cases, being placed on a PIP makes the continuing relationship untenable, and it can amount to constructive dismissal.

Knowing when and how to raise a negotiated exit takes years of experience. It is a highly tactical situation and not one that should be attempted without knowing what the risks and benefits are. We have the expertise to give you solid, practical advice on your rights.

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