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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49803
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Before going into all the detail, I'd like to ask one simple

Customer Question

Before going into all the detail, I'd like to ask one simple question - all of a sudden being put on a Performance Improvement Plan signals to me that they are ready to part with me? Despite all the talk about good intentions. Is this the right way to look at it? I feel betrayed and I am just trying to understand whether that's the right way to think about it. I will add all the details. Bit if an HR professional could comment please - should I read this as - urgently go and a find a new job (which I've been not very actively doing anyway)? We just don't like you. We are saying we're actually doing it but indeed I should read between the lines. I need to understand this. Thank you.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones : , my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
JACUSTOMER-939a56s8- : Ben - 4.5 years. I had 2 development areas (I can provide more detail on the whole situation) but we have always discussed them in the context of my promotion. But before I do this, I just want to understand in principle what it means. The way it was explained to me is that they are trying to help me and decided to do this because they feel I am not acting, or not consistently acting, on their feedback. As I said, these development areas have always been discussed in the context of me getting to the next level. It's important to understand as I already felt fed up and losing motivation - and I am very driven and motivated by nature.
Ben Jones :

, sorry I was offline by the time you replied. Just because you have been placed on a PIP does not necessarily mean the employer is trying to remove you from the business. I certainly understand it can be a shock and leave you feeling deflated but do not assume the worst just yet.

As you have more than 2 years’ service you will be protected against unfair dismissal. This means that the employer would be obliged to show there was a fair reason and also follow a fair procedure. Whilst capability, which includes performance, is a fair reason , the key would be the procedure followed by the employer and I will explain that in a bit more detail below:

So as mentioned, an employee's poor performance is a potentiality fair reason 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 dismissal performance to be fair, an employee must be warned that they need to improve, be given reasonable targets 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 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. But as mentioned there is no guarantee this would end in dismissal just yet – they are just at the start of the PIP and before dismissal is even contemplated you would expect them to give you more opportunities to improve.

So monitor the situation and see if it appears that they are genuinely trying to help you or that they are trying to force you out by being unreasonable and not recognising the efforts you are putting in to improve.

Hope this clarifies your position? If you could please let me know that would be great, thank you

JACUSTOMER-939a56s8- :

Thanks Ben. Why would one use this humiliating procedure in order to genuinely try to help me? Why is it necessary? I thought you'd say - read it as they want you out. Please explain why would this be anything else? I think it's just the way I've been discussing my promotion recently is incorrect. Anyway, it's really a long story so can you please just answer my question. Also, I would like to talk to the HR rep about this and ask their point of view - what specific questions would you recommend me to ask? Do I have the right to not accept this PIP? The company policy says such plans are not part of the disciplinary procedure. Although at the bottom of the PIP there is a sentence saying 'we may take a disciplinary action...'.

JACUSTOMER-939a56s8- :

Would you advise to get a legal advice?

JACUSTOMER-939a56s8- :

Which I am trying to get from you but it's a matter of at least 2 hours conversation I suppose.

JACUSTOMER-939a56s8- :

Would a company treat a talent in such a humiliating way? Or should I really view it as an 'opportunity'...?Thank you.

JACUSTOMER-939a56s8- :

I would appreciate a quick response.

JACUSTOMER-939a56s8- :

- I really need an urgent answer...

Ben Jones :

, I cannot say you should red it because they want you out because I have seen many examples where someone has gone through a PIP and kept their job in the end. Unfortunately I have no idea what the employer’s actual intentions are so I cannot tell you what the outcome would be – only they know that. Getting legal advice at this stage is pointless – there is not much a lawyer can do to help you, we only really get involved if it is clear you are leaving and maybe we can negotiate a settlement or if you have been dismissed and you are considering the tribunal process to challenge that. So in the circumstances it may be best as I mentioned earlier to see where the employer takes this and with time you will be able to determine what their intensions were, but at this early stage you are unlikely to have many rights, such as resigning an claiming constructive dismissal – not enough has happened to give you the right to claim.

Ben Jones :

Can I clarify anything else in relation to this?

JACUSTOMER-939a56s8- :

Thanks response Ben. It's not about keeping my job really - it's about how I feel. I need to trust that 'the PIP process should be viewed as an opportunity to focus on development area's in a structured manner'. It's critical to believe (I struggle at the moment) that they really want to help me. E.g. one of my Development areas that has previously been in my Development plan (as something to focus on in order demonstrate I am able to perform at the next - SnMgr - grade), has been transferred to the this plan - 'to alarm me up and really focus on this.'

JACUSTOMER-939a56s8- :

  1. 1. Communication, leadership and impact: J is recognised as having strong XX and YY content. Based on consistent feedback, one of her key development areas is to be able to articulate this knowledge and become more commanding in a client and internal situations so that she is recognised and perceived as a lead. , at Client X the feedback was given that J can let her voice drop in a client conversation, giving an impression that she is not confident in her content which undermines her position. J continually misinterprets this point by insisting that she needs to have a Project lead role to demonstrate this development area. J really needs to take on-board the repeated feedback that she does not need a lead role to demonstrate impact and project lead behaviours.

JACUSTOMER-939a56s8- :

I said I never said that I need a project lead role to be able to demonstrate this. I said I wanted a lead role because 1.5 years ago I've been told that I need to have a formal lead role in order to progress to the next stage (which is true, they said that to me, and actually I had lead roles already). So this explanation of mine is taken as I am not getting feedback on board.

JACUSTOMER-939a56s8- :

Yes, whilst I acknowledge that this is an area where I need to develop further, I don't quite understand why it's a show-stopper if I have excellent client feedback from some big projects in this area, e.g. 'The contribution made by J to this process has been invaluable, both in terms of her leadership and her contribution to the solution.

J is exceptionally skilled in organising and structuring the approach and ensuring that the plan is adhered to. She does this in a collaborative and professional way demonstrating an attention to detail and rigour that I have rarely seen.

I have found J to be a fantastic sounding board when discussing issues and her logical and reasoned approach has greatly benefited the programme; she is quite an inspirational character.

In the end the solution has to work, and I think that J’s contribution has meant we have a solution that will withstand implementation and is future proofed. J is a great asset to the 'My Company' brand.

JACUSTOMER-939a56s8- : Ben - are you able to respond? Does the above give you some flavour of what's happening? I am fed up with being patronised. I regret I haven't walked out the door earlier myself - which I planned to do anyway.
Ben Jones :

, sorry we are not always available as we practice law outside of this site, hence why there may be occasional delays.

Going back to your query, what are you actually hoping to achieve and what assistance do you require from me. I see that this is a personal issue and understand that but all I can advise on is the legal position so I cannot really get too personal and discuss whether the reasons PIP are right or wrong? Thanks

JACUSTOMER-939a56s8- :

Ben - thanks back to me. I've chosen a high priority option and - based on my previous experience with this site - the expert always responded very quickly or they would let me know when they'd back online.

JACUSTOMER-939a56s8- :

I understand you can't provide any further advice.Thanks.

Ben Jones :

ok you are welcome

JACUSTOMER-939a56s8- :

Ben - actually there's one question that you could answer from the legal perspective. Do I have the right not to accept this PIP? Particularly that it was initiated after the talent review meeting, not after the mid-year performance review?

Ben Jones :

is there a specific PIP policy and does it state when it can be introduced?

JACUSTOMER-939a56s8- : No, there isn't. I've just spoken to HR and they say it's an informal process but a disciplinary action MAY be taken at the end of it if it's not successful.
JACUSTOMER-939a56s8- : I've asked if I can appeal against the decision to launch the PIP and it looks that I can't. Is it legitimate?
Ben Jones :

An employee can be placed on a performance plan at any time and even if there is no specific procedure dealing with it. The employer does need a written policy to be able to place someone under performance review. It is not a formal sanction against someone and more of an opportunity to help employees deal with apparent performance issues before further more formal action is considered. You can refuse to participate in this but if the employer feels it is unreasonable then they could treat this as insubordination and if they also believe that the performance issues have not improved they could jump straight to disciplinary action, so bear that in mind.

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? Thanks