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What if I do not agree with the performance improvement plan?


DON’T SIGN THE PIP

First and foremost, don’t sign or agree to the PIP if you are not happy with it. There are then a number of routes open to you.

LODGE A GRIEVANCE

You can speak informally to your line manager or HR. This may or may not get you very far as it is unlikely the PIP will simply be withdrawn, although it is possible it could be watered down.

If you need to escalate matters to a more formal footing, then you are able to lodge a grievance against the plan stating why you are not happy with it or why you consider it is unfair. This may be as a result of the fact you have been unfairly selected for the plan when your performance was no better or worse than your colleagues. Or it may be that the targets and objectives that you have been set are unrealistic. Alternatively, it may be that you consider the plan is simply a draconian step by your employer to force you out for some other reason (for example due to a personality clash or to save a redundancy payment), and has nothing to do with your performance.

APPEAL THE PROCESS

If your PIP is linked to a formal disciplinary process, you are also entitled to appeal any warning given at each stage, and including in relation to your dismissal if it comes to this.

NEGOTIATE AN EXIT

Unfortunately, many employees who are put on performance improvement plans do eventually face dismissal for capability reasons. In fact many find that the relationship has all but broken down well before this stage. Even a sideways move to another business team can be thwarted with the PIP hanging over you. For this reason, whether you agree with the PIP or not, it can be  more sensible for both parties to part company amicably at an early stage with terms that include a lump sum payment to you and a job reference.

If you do not see a long term future with your employer, there are advantages for both parties to go down this route. Neither you or your employer will have to invest time and energy into a process where the trust and confidence within the relationship has clearly dissipated, and beyond repair. For your employer, they may welcome a clean break, especially if you are prepared to agree not to make any future claim against them (see below).  Few employees will relish the thought of being dismissed because of poor performance with the impact this may have on their future job prospects. With the benefit of an agreed settlement, no mention of the PIP is usually recorded.

SETTLEMENT AGREEMENT

It is always best to obtain legal advice before you take steps to negotiate with your employer, as you may adversely affect your employment and the negotiations. If your employer is receptive to a mutual termination, you would almost certainly be expected to sign a settlement agreement. This is a legal document drawn up by your employer reflecting the agreed departure date, a lump sum payment, notice provisions, a job reference and a host of other termination arrangements. In turn, you will be giving up your employment rights in the settlement agreement in respect of any future claim against your employer. You must have your own independent legal advice on the agreement for it to be binding (which we are able to advise you on). The terms of settlement should be as favourable to you as possible if you are agreeing to give up your employment rights- and especially if the PIP has been used oppressively against you.

TRIBUNAL PROCEEDINGS

If  settlement terms cannot be agreed, or you do not pass the objectives in the PIP and are ultimately dismissed, you have a 3 month (less one day) window to make a claim to an employment tribunal for unfair dismissal. The time starts to run with the date of your termination of employment.

In some circumstances, if the PIP is completely without foundation and represents a fundamental breach of trust and confidence, you may have grounds to resign and claim constructive dismissal. You should if possible, however, always lodge a grievance first in a constructive dismissal claim and take legal advice before you resign.

Philip Landau and his employment law team are highly experienced in advising on all aspects of the performance improvement plan, including any settlement negotiations, when and how they should be started, and the appropriate strategy if they are not successful.

We can advise you wherever you are in the UK. We do not need to see you.

Please do not hesitate to contact Philip Landau for clarification of these issues or to discuss tactics. You can call Philip on 020 7100 5256.

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