Employee rights on a performance improvement plan

Employee rights on a performance improvement plan

Underperformance is challenging for everyone involved: employers may simply think that it is a problem for the employee to fix, and employees may feel that the outcome is a foregone conclusion. However, neither view is right. It is important to consider employee rights on a performance improvement plan, as a failure to act appropriately may result in a successful Employment Tribunal claim.

This blog will answer the question ‘what is the purpose of a performance improvement plan? It will also explore employee rights on a performance improvement plan, and consider unfair dismissal (and other claims) which may be relevant when exploring underperformance.


What is the purpose of a performance improvement plan?

Organisations often differ in their approach regarding what should happen when an employee is not meeting the grade. Some organisations have elaborate procedures in place whilst others opt for a simpler approach. However, there are elements that should apply regardless of where the employee works.

As the name suggests, a performance improvement plan is a document which lays out where the employee is not meeting the grade.  Most people are aware of what performance improvement plans are, but if asked ‘what is the purpose of a performance improvement plan?’ the answers may vary depending on who you ask. The answer is that the purpose of a performance improvement plan is to explain what is required and provide support to help the employee to make the necessary improvement.

Whilst this blog refers to employee rights, it should be stressed that it will ultimately be for the Employment Tribunal to decide whether an employer has acted reasonably or not.

Employee rights on a performance improvement plan:


1. To be given clarity

It is often the case that employees who are put on a performance improvement plan simply do not realise what is required and are shocked to discover that their work is not meeting the required standard. Perhaps this situation arose because performance management meetings are infrequent and so the employee could not tell how things were going, maybe there is infrequent contact between the employee and the line manager so there is a delay before issues come to light, or it could have been the case that the employee was told to use initiative and focused in the wrong areas. Whatever the cause of the confusion it could have been avoided.

Efforts should be made at the outset to explain what is required in terms of targets and timeframes, so that nobody is in any doubt about what is needed. As well as setting expectations employers should explore ways to offer support which would assist the employee to achieve what is required.  Employers should also ensure that any applicable procedures are followed so that everyone is treated in a way that is transparent and fair.

Plotkin & Chandler has expertise in providing HR consultancy and HR training on all aspects of performance management, including properly managing a performance improvement plan and implementing support measures. We also assist employees and can provide a range of support regarding what to do if you feel that your performance improvement plan is unfair, so if you need advice on this topic, we would be pleased to hear from you.

2. To be treated consistently


Imagine the distress you would feel after being told that you had performed well only to be told soon after that you were underperforming, and a performance improvement plan would be the next step.  There are many potential reasons for this swift change in fortune such as a temporary blip, changing the targets since the last review, having a different line manager etc. and it is important to establish what the reason is rather than assuming it was the fault of the employee.

Where an employee is on a performance improvement plan, it is particularly important to be consistent with regards to the standards that need to be met. For example, if the criteria for assessing performance has changed employees should be made aware of this as soon as possible in order to adjust to the new way of doing things. If the change in performance occurred at a time when there had been different line managers, was training given to ensure consistency in terms of what is expected by different managers? Adopting a transparent approach to performance management is also likely to reduce allegations that one employee has been treated better or worse than other colleagues.

3. To be supported


Being on a performance improvement plan is obviously going to be a challenging time for the employee. There will inevitably be a concern about whether it will be possible to turn things around in the time available and of the consequences if that improvement is not possible. The improvement required may relate to the quality of work, the speed in which work is produced or perhaps there is nothing wrong with the work, but improvement is needed in behaviours such as engaging properly with colleagues and customers. In each case, support interventions such as training may help to get things back on track. Care should be taken by employers when considering support measures, as a failure to act reasonably may result in an Employment Tribunal claim being brought.

4. To consider reasonable adjustments if the employee is disabled


An employer is obliged to consider reasonable adjustments to remove a substantial disadvantage that the employee would otherwise experience because of their disability. What is reasonable depends on the particular circumstances and there are a wide range of potential options when it comes to reasonable adjustments. A basic example of a reasonable adjustment would be to allow an employee who has a slow typing speed as a result of their disability to use technology to dictate what would have been typed otherwise.

The above is just one basic example of how an adjustment can substantially improve what can be achieved. It is therefore particularly important that when a disabled employee is on a performance improvement plan care is taken to consider what adjustments could be made to improve the situation.

As well as providing employers with HR consultancy and training on the topic of reasonable adjustments, we also support employees and would be pleased to hear from you if you feel that your employer or former employer failed to make reasonable adjustments


Unfair dismissal and underperformance

So far in this blog we have focused on a situation where an employee is going through a performance improvement plan, but what if the employee is ultimately dismissed? Can the employee bring a claim at the Employment Tribunal?

Poor performance is an example of capability, and capability is a reason which could justify dismissal. However, it is not simply a matter of whether targets are met or not. In such circumstances, the Employment Tribunal will take into account a number of factors when determining whether or not the decision to dismiss was fair. In order to bring a claim for unfair dismissal and employee needs to have two years of continuous service.

However, there are other potential claims that can be brought without the length of service requirement referred to above, such as discrimination or failure to make reasonable adjustments.

In addition to our HR services, we also specialise in employment law. Whether you are an employer defending an Employment Tribunal claim, or you are an individual that is interested in bringing an Employment Tribunal claim we can help.

Contact us on 020 3923 8616 or email us on info@plotkinandchandler.com to discuss your situation and find out the ways that we can help.








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