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Poor Performance at Work


If you are facing an allegation of poor performance at work, this may be because you are missing sales or other business targets set by your employer, your work is of a poor standard, or  as a result of a failure to properly manage or carry out administrative tasks. Capability is a potentially fair reason for dismissal by your employer, although for  a dismissal to be fair, your employer must also demonstrate that they have followed a correct process.

The usual process for poor performance is for your employer to give a first and then final written warning before you are dismissed. Often, you will also be placed on a performance improvement plan (“PIP”) which will set out what the objectives are for you to improve, and give you a reasonable timescale to do so. You are entitled to appeal any disciplinary action.

Before a formal disciplinary procedure gets underway, your employer should ideally address performance issues informally if possible, and such initial discussions would not usually appear on your disciplinary record. It will depend on your employer’s usual processes  as to which angle they will take.

You can challenge the PIP if you don’t agree with it by lodging a formal grievance in accordance with your employers policy (it is usually lodged with your line manager or HR).

The ACAS code of practice provides guidance for employers to ensure that performance issues are dealt with fairly at work, although your employer will often have their own specific policies (which should be no less than what is recommended by the ACAS code). Although the ACAS code is not legally binding, whether or not your employer abides by the ACAS code will be a factor which Employment Tribunals consider when determining whether a performance dismissal is fair. An employment tribunal can impose an uplift in the damages you are awarded by 25%  against your employer as a penalty for not following the Code.

In many cases, employees consider it more sensible and pragmatic to embark on discussions to leave their employment without going down performance route. If you do not want to stay with your employer, they may be receptive to “without prejudice” discussions surrounding a mutually agreed termination. This will result in the signing of a  settlement agreement.

The settlement agreement will set out all the agreed terms of departure.  Negotiations, if successful, would usually result in a lump sum payment to you and a reference, so long as you waive all future claims against your employer. You will need an independent solicitor to advise you on the terms of the settlement agreement, but it is usually best to take legal advice before this stage.

Please click here for Philip Landau’s blog in The Guardian relating to Performance Improvement Plans

Click here for a dedicated site in relation to Performance Improvement Plans

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