It is perhaps a sign of the times that we are seeing an increasing number of employees who, unexpectantly, are being placed on a Performance Improvement Plan (“PIP”) despite their previous good performance.
Fair Reason For Dismissal?
Generally, if you have over two years’ continuous employment you have greater employment law protection rights. This means if you are dismissed you are eligible to pursue a Straightforward Unfair Dismissal Claim in the Employment Tribunal.
When dismissal of an employee takes place, the employer should be able to show that the dismissal was reasonable and attribute it to the employees conduct, redundancy, capability, statutory illegality or some other substantial reason (SOSR). As you can see, the options on dismissal are limited. Sadly, due to the current economic climate it is likely some employers will shoehorn certain employees into a potentially fair category for dismissal in an attempt to dismiss them.
Why Capability?
It is impossible to really know why an employer would target an employee who generally enjoys a good performance/work ethic, but I suspect for some employers it could be due to financial pressures on them and the need to cut costs without engaging in a lengthy redundancy consultation or making redundancy payments. Especially so, as a fair redundancy dismissal should be just that; fair and if an employer were to target a particular employee this could also result in an Unfair Dismissal claim. For this reason, employers may choose capability as an alternative.
Capability Dismissal
The Employment Tribunal, when assessing whether a dismissal of this nature is fair, will consider the reasonableness of the employer’s decision. The Employment Tribunal will want to be satisfied that the employer acted honestly, that they honestly believed on reasonable grounds that the employee was incapable of performing their role. Generally, it is established that dismissals relating to poor performance will be unfair unless the following elements are present: –
- A proper investigation into the problems has taken place.
- The employee has been made aware of the problem and given the opportunity to improve within a realistic time scale.
- The employee has been provided with appropriate support and possibly training.
- The employee’s progress is reviewed during the review period (PIP).
- The employee is offered the right of Appeal against the decision to dismiss.
At the end of the above the employer would be expected to demonstrate that the employee was incapable of performing to the required standard which led to a fair dismissal.
The PIP And What Questions Should You Ask
As you can see above, it is not straightforward to dismiss an employee on the grounds of capability. Certainly, it is not if the employee has regularly met their targets or objectives, or perhaps the employee has reasonable mitigating factors as to why this year has been different for them.
If your employer approaches you on performance related concerns, it is important for you to ask the questions on why your performance is being called into question – do they have any examples they can present to you which evidences a low standard of your work?
The next stage will likely be discussing the PIP. The PIP is a document which aims to set out clear objectives to help an employee reach the satisfactory level of performance. You should therefore also ask any questions you have on the objectives set. For example, if you do not understand the objective – you should say, or if you believe the objective has been unreasonably set – you should communicate this.
Your Options
If you are going through a capability procedure, you may find you have the following options available to you.
1. Submit A Formal Grievance
You may feel the PIP is motivated for a reason not related to your performance. In those circumstances it is important that you communicate this and the best way to do so is by way of a Formal Grievance. I would anticipate the capability procedure would be placed on hold until your Formal Grievance has been independently investigated and addressed.
2. Engage With The PIP
You should engage fully with the PIP and ensure any concerns are raised formally. Ultimately, you will have to see how it goes. It may be that matters resolve themselves.
3. Negotiate An Exit
Your feelings toward your employer may have deteriorated and you no longer envision working for the company. In those circumstances, it may be possible to approach your employer on a without prejudice basis to see if you can negotiate an exit package which pays you an additional ex-gratia payment, together with your contractual entitlements.
Lincs Law Employment Solicitors can help you
If you believe you are being subject to an unfair capability procedure, please ring for a free, no obligation telephone consultation on 01522 440512 or use the contact information on this website.
Lucy Stones
Associate Employment Solicitor
Lincs Law
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