further award of damages in Tribunal).
If therefore an employee’s performance
is below par because of a disability
or their poor performance arises as a
consequence of disability, it is imperative
that this is explored further before any
disciplinary sanctions are imposed
and that adjustments are made where
necessary.
Effective Performance
Management
The aim of any performance improvement process (PIP) should
be to help an employee meet the standards that are expected
of them, but if their performance doesn’t improve and they are
ultimately dismissed what factors will an Employment Tribunal be
concerned with as to the fairness of that dismissal?
It is imperative that an employer acts
reasonably towards their employees, not
just during a PIP but also before any such
process even begins.
Subjecting an employee to an unjustified
PIP might well amount to a breach of trust
and confidence entitling that employee
to resign and bring a constructive unfair
dismissal claim - even if the PIP is
expressed to be ‘informal’. It will also
be unfair to ambush an employee with
allegations of poor performance at a
meeting that has ostensibly been called to
discuss other matters.
Capability – defined in the Employment
Rights Act 1996 by reference to ‘skill,
aptitude, health or any other physical or
mental quality’ is a potentially fair reason
for dismissal but acting reasonably is the
key to successfully defending any unfair
dismissal claim and the burden of proof is
on the employer to demonstrate that they
have done so.
When it comes to a poor performance
capability dismissal an employer will first
have to demonstrate that the employee
knew what was expected of them. While
not every requirement of a role needs
be in writing, an employer should be
able to produce a written job description
and regular appraisals to show that the
employee was aware of the required
standards.
If those standards aren’t met, a fair and
reasonable PIP will include a proper
investigation into the problems, making
the employee aware of the problems and
giving them an opportunity to improve
within a realistic timescale, providing the
employee with appropriate support and
possibly training, reviewing the employee’s
progress regularly and imposing warnings
before proceeding to dismissal. If there is
a dismissal it will usually be on notice (or
with pay in lieu of notice) as it is relatively
rare for poor performance to justify
summary dismissal.
It is well known that employees must have
at least two years continuous service to
bring an unfair dismissal claim which may
tempt an employer to circumvent a PIP in
cases where an employee doesn’t have
at least two years employment but length
of service is not relevant when it comes
to Tribunal proceedings for discrimination.
All employees (and job applicants for that
matter) are protected from discrimination.
How might issues of discrimination arise in
the realm of performance management?
Employers must make reasonable
adjustments to any ‘provision, criteria or
practice’ that causes a disabled person to
be substantially disadvantaged and this
includes making adjustments to a PIP. A
failure to make reasonable adjustments will
amount to disability discrimination (and a
This doesn’t mean ignoring the
performance problems but could instead
mean allocating some of the disabled
employee’s workload to others (either
temporarily or permanently), giving
a disabled employee more time to
complete tasks, transferring them to a
new role, providing modified equipment
and/or providing a mentor or support
worker to assist them. It will usually
be sensible to seek an opinion from an
Occupational Health expert as to disability
and reasonable adjustments in these
circumstances.
If ill health is behind poor performance
the general principles of reasonableness
still apply however a different procedure
should be followed in order to ensure a
fair outcome.
The leading case on fairness in ill-health
dismissals made it clear that an employer
should establish the true medical position
and consult with the employee before
deciding whether to dismiss. Factors
such as the nature of the employee’s
illness, the prospect of them returning to
work, the need for the employer to have
someone doing the work and the effect of
the absences on the rest of the workforce
are also important.
Dismissing one employee who failed to
meet the required performance standards
while retaining another who has also failed
to meet targets, can lead to problems
if the disparity in treatment can be
interpreted as discriminatory, for example
because it is based on age or gender.
Further, where poor performance issue is
raised in an oppressive or heavy-handed
manner, this can lead to allegations of
harassment which, if linked to a protected
characteristic such as disability, sexual
orientation or race may also amount to
discriminatory conduct as defined by the
Equality Act.
Case law in this area (and in most areas of
employment law) is always fact sensitive
which is why it is so important to seek
legal advice on any given situation before
taking any steps that could lead you into
costly and time consuming litigation.
By Sam Dickinson
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