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.