Performance issues at work? Six things you need to know if your employer is questioning your capability.

Hakan Enver 09.09.2015

Don’t agree to a performance process if you believe it is misconceived, says guest blogger and employment lawyer Philip Landau.

Being pulled up on work performance will resonate with most employees at some point during their working life, and in many cases it can lead to dismissal. But what are your rights?  Here are six things you need to know:

1. “Capability” is one of the fair reasons that employers can rely on to justify a dismissal.

2. If you have less than 23 months and 3 weeks employment (just shy of 2 years), you cannot make a claim for unfair dismissal, even if the performance allegations are unfair or no process has been followed. There are a few exceptions to the 2 year rule, such as where there has been discrimination by reason of your race, sex, or disability .

3. The Acas guidelines make it clear that employers should follow a minimum process when dealing with performance issues. A failure to do so can give rise to a claim for unfair dismissal. The minimum process is essentially:

(i) Before taking disciplinary action, your employer should properly investigate the reason for your poor performance, which may include a review of your appraisal records.

(ii) If a disciplinary process is started, you should be notified of this in writing, with the full facts and evidence, together with the possible consequences (such as being provided with a warning, or that you could face dismissal). You have the right to be accompanied at the meeting by a work colleague, a trade union representative or an official employed by a trade union where a warning or some other disciplinary action could be taken.

(iii) You should be provided with a first written warning together with details of the improvement required and a reasonable timescale .You should also be informed of what further disciplinary action could be taken – which could very well be a final written warning if you have been provided with a first written warning, or a dismissal if you are at the final written warning stage. Sometimes you will be issued with a final written warning straight away if your performance is sufficiently serious (for example, where it has had a serious impact on your employers business).

(iv) You should be given the right to appeal any stage of the disciplinary process.

4. You may find yourself on a “performance improvement plan”, or “PIP” which is a formal document setting out how you need to improve , over what period of time and what your targets/objectives are.  This may or may not be part of a disciplinary process.  If it isn’t, then your employer may decide to fastrack any subsequent disciplinary if you fail the plan. If you do not agree with the PIP, you should lodge an internal grievance about it. You should definitely not be acknowledging or agreeing to it, even if your employer invokes bully boy tactics as this could compromise your legal position later on.

5. There are certain clues as to why a performance process may not be everything that it seems. If, for example, you have a long period of service without any major prior issues, the introduction of a PIP often raises eyebrows.  Similarly, a performance improvement plan that puts forward unrealistic targets and/or timeframes suggests that you are being set up to fail. Your relationship with your line manager may also be an important factor. Many individuals who are put on a PIP can cite an underlying motive which has nothing to do with the standard of their work and more a breakdown in relationship with their manager, or where a new manager has been brought in to make changes. You are best off taking legal advice if you are unsure what to do.

6. Your employer may decide to have what is called a “protected conversation” with you, in which they offer you a financial package to leave rather than go through a performance process. Such discussions are frequently instigated without prior notice, and you are generally restricted in referring to such offer in any future proceedings- although you don’t have to accept the offer.

Philip Landau


Philip Landau is an employment lawyer at Landau Law. You can follow him on Twitter @philiplandau.


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