What is the process?
A performance improvement plan process is often undertaken at the same time as formal disciplinary proceedings based on your capability. Employers must follow a fair process in all the circumstances, if they wish to rely on such process as justification for any subsequent dismissal.
Many employers will opt for an informal process first. Usually this entails discussions on an amicable basis in the hope any capability issues can be resolved at an early stage. A PIP can be dealt with without a formal disciplinary process in place running alongside, but more often than not, it will be linked to disciplinary proceedings. If your employer does opt for formal disciplinary proceedings in relation to your performance, you should expect the following minimum process, which is in accordance with the ACAS Code of Practice:
- You should be notified in writing in advance of any disciplinary meeting, and be provided with sufficient information about your alleged poor performance and the possible consequences.
- A meeting should then be held with you to discuss the issues as soon as possible after this notification, but allowing you reasonable time to prepare your case. When it comes to disciplinary meetings, you have the statutory right to be accompanied by either a colleague or a trade union representative, subject to a reasonable request.
- After the meeting, a decision should be taken as to whether or not disciplinary action is justified, and again, you should be informed in writing. It may be that if your poor performance is sufficiently serious, it would be appropriate for your employer to issue a final written warning straight away, rather than a first written warning.
- The first written warning should set out the nature of the poor performance, and the improvement in performance required with a timescale to improve. This is where the formal improvement plan may kick in, although your employer could simply rely on a warning together with a simple list of required improvements with appropriate timescales. You should also be told how long the warning will remain live and the consequences of your failure to improve in the period notified to you.
- As with any disciplinary action, you should have the opportunity to appeal against any decision your employer makes when it comes to poor performance.
- It is important to note that you can always raise a formal grievance alongside any disciplinary action, so the PIP is able to be challenged without having to wait for the outcome.
- If you fail to improve after the first or final warning, this could ultimately lead to your dismissal based on your capability although you would usually be expected to have one final extension of time under a PIP (or new PIP) in which to improve.
Where the Performance Improvement Plan is adopted within the above process, it should:
- Identify the reasons for your poor performance.
- Set out where you are failing.
- Explain how you are required to improve, and with clear objectives.
- Give you a reasonable opportunity and time to improve, and provide appropriate timescales for reviews.
- Warn you of the consequences should you fail to improve (e.g. dismissal)
If you are successful in meeting the objectives under the PIP then, the disciplinary process against you will fall away, although any warnings you have been given may remain on your records for a period of time in accordance with your employers policy.
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.