Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Before I can look into this further, please can you tell me how long you have worked there for?
OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.
Many thanks for your patience. A PIP procedure is very much an internal procedure used by employers to deal with performance issues. The way it is applied and the steps the employer follows are very much down to them. It is entirely possible for one employer to have a PIP policy which states that they will try and discuss matters initially with the affected employee and only use PIP as a last resort, whereas another employer could have a policy which completely bypasses this ‘informal’ part and goes for a PIP straight away. Either is possible and perfectly legal. There is nothing in law which states such discussions must be considered before the employer initiates the formal performance procedure. It may be seen as good practice, but as mentioned that is for the individual employer to decide. So if your policy says that they can go straight for a PIP and there is no mention of any conversations about this to start with, the employer is able to do this and follow their own procedure.
I'm sorry if this is not necessarily the answer you were hoping for, however I do have a duty to be honest and explain the law as it actually stands. This does mean delivering bad news from time to time. I hope you understand and would be happy to provide any further clarification if needed. If you are still satisfied with the level of service you have received I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 starts at the top of the page. Thank you
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Hi Phil, unfair dismissal will not necessarily be that easy to win because if the employer adopts a fair PIP process, follows it through to completion, can justify that no improvements have been made and eventually dismisses as a result, they are potentially able to show it was done fairly.
As far as the law is concerned, an employee's poor performance is a potentiality fair reason for dismissal under the Employment Rights Act 1996, as it would amount to lack of capability. This should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality" and must relate to the work that they were employed to do.
In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.
Generally, the reasonableness of such dismissals would be measured against the following criteria:
· Did the employer have reasonable belief in the employee's incompetence;
· Was the situation investigated and was the employee given the opportunity to voice their side of the story;
· Was the employee aware of what was required of them in terms of satisfactory performance;
· Were steps taken to minimise the risk of poor performance through training, supervision, etc;
· Was a proper appraisal conducted and was the problem identified in a timely manner;
· Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;
· Did the employer consider offering alternative employment.
The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged.
An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.
You are welcome all the best