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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48190
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have received a performance improvement plan today and I

Customer Question

I have received a performance improvement plan today and I disagree with it what should I do? Should a performance improvement plan review your full lifecycle with your employer? Some of the points are the first time I have heard of them and my line manager does know what I have been doing so is not in touch with the reality of what I am doing. There is no bench mark for performance and could give me any examples of what the benchmark for performance should be? The plan is purely based on what happened 9 months ago and is not based on my current performance. I understand that the company is changing how it measures performance, however the timings are really aggressive. What should I do?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello how long have you worked there for?

Customer: replied 1 year ago.
3 years and 9 months
Expert:  Ben Jones replied 1 year ago.

Thank you. There is very little in law about PIP and how they hould be carried out or applied. In reality this is down to the employer, based on what they are trying to deal with and what they believe needs improvement. For example, there is nothing that says an employee’s full lifecycle performance with the company needs to be taken into account and in fact it is common for a specified period to be looked at. This happens in circumstances like when someone has targets to work to in a specific time period, e.g. a financial year, and failure to meet those could result in performance action being taken by the employer.

For disciplinary or performance action 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 action 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 formal performance action. 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 action could be challenged. In the first instance you could do this if you have been allowed to formally appeal. If not, you can use the grievance procedure. After that your only options are constructive dismissal, if you believe you have been forced out as a result, or unfair dismissal if you are dismissed because of this.

This is your basic legal position. I have more detailed advice for you in terms of the rights you have should you be forced out or get dismissed, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks for this. The PIP has come about a campaign I completed 9 months ago, and it's purely been based on that even though I have delivered other campaigns since (may not as large) and their reasoning is my ability to handle pressurised campaigns which I have delivered in the past. If I file an grievance do I still attend work? Or if I decided that the new culture is not right for me, do I have any rights?
Customer: replied 1 year ago.
Sorry also what are my rights in the terms of being forced out or dismissed.
Expert:  Ben Jones replied 1 year ago.

If you raise a grievance you would still attend work. It does not keep you out of work. As to your rights going further, if you end up leaving this employer., either by resigning or being fired for poor performance, you can consider a claim in the employment tribunal within 3 months of leaving. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

https://ec.acas.org.uk/Submission/SingleClaimantPage

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.

Customer: replied 1 year ago.
Thank you
Expert:  Ben Jones replied 1 year ago.

You are welcome