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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50161
Experience:  Qualified Employment Solicitor
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At my half yearly appraisal my manager informed me that my

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At my half yearly appraisal my manager informed me that my performance was not satisfactory and he intends to initiate a formal Performance Improvement Plan (PIP) through the HR process.
I am worried as PIP in most organisations is a way to manage people out.
Our company HR policy permits this action. However, in previous companies I have worked for, it is not permitted to initiate a formal PIP unless there have been prior conversations over a period of time in which the employee was told that their performance required improvement, and they were given time to demonstrate this.
Only if that failed could a formal process be initiated.
In my case there have been no prior discussions to this effect and no emails or other communications to me suggesting my performance was an issue. In fact none of the 1:1 conversations I have with my manager have been minute or documented.
My manager has suggested that I might like to look for another role elsewhere in the organisation, however, with a PIP on my HR record I am concerned that no other manager would consider me.
So I feel that I am being put in a position where I have little option but to resign.
So my question is, from a legal perspective, can my employer initiate a formal process without any prior performance conversations having taken place and is the company?

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?

Customer: replied 1 year ago.
Since 6th September 2013 - so just under 3 years.

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

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi Ben - Thanks for your response. I have another related question, which and am happy to pay again for an answer.At the discussion with my manager I told him that I was not happy in the role, and that may account for the under-performance whether actual or perceived. I told him that I felt I was a better fit to my previous role in the organisation and that I was able to add more value there and felt more comfortable..He said (and followed up in writing) that I had 3 options:1) A formal PIP process
2) Look for another role in the organisation - but we will still follow the PIP process while I do that
3) Resign and leave the organisationMy concerns are:a) A PIP process almost always leads to managing out - few come though it and stay
b) If a PIP process is on my HR record, no other manager is going to take me on within the organisation
c) Resignation surprises me as even an option to be offered at this stageOverall I feel as if I am being pushed into a corner where I have no option to leave the organisation as everything points to an attempt to ensure I cannot remain.I have pasted below the mail he sent me.In you opinion is this fair treatment? Does it potentially even border on unfair dismissal?ThanksPhil________________________________________________________________________________________Hi Phil,
Firstly, thank you for your honesty in our discussion yesterday.
I appreciated both your openness and the recognition that your performance has not been consistent during the first half of the year. I wanted to replay back some notes that I took of the session, so that I can make sure I can support you, and we both understand the options available for us to move forward.
Through discussion during our 1-1 yesterday where I highlighted that you were not performing at the required level for a ManB, you mentioned that:
1. You were not happy in the role – highlighting specific concerns with a lack of motivation and enthusiasm you currently have within the role. You suggested that this lack of motivation stems from the type of work you are doing and the limited value you feel you are adding to the bank or its customers (as part of the 2nd Line of Defence Risk function).2. You have not really settled into the 2nd line function since joining – and that you do not feel that your are using all of your skills to their fullest within a 2nd line role.3. You feel that your skills would be better used in a 1st line role; which is directly responsible for the management of risk.4. Your personal circumstances are likely to change in the next 12-18 months – such that you might want to stop work and travel with your wife for a period of time – you mentioned 12 months of travel in late 2017.
As we discussed, our Risk function has a mix to the type of engagements (e.g. long, medium and short term activities), with your work being largely focused on long term programmes with a small number of short term activities.
We’ve agreed that you have 3 options that you are going to consider for our discussion on Tuesday:
1. Commit to an improvement plan - working through your current de-motivation and underperformance as a Man B within Technology Risk2. Look for a better suited role in the 1st Line of Defence within the bank3. Leave the bank to find alternative role/motivation
As you know, I am fully committed to helping you, but the next step should be decided by you.
Please give me call should you want to discus further prior to our Tuesday meeting.

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.

Customer: replied 1 year ago.
Thanks Ben - very helpful.

You are welcome all the best