Poor Performance at Work

If your employer alleges that your level of performance at work is poor, you may be subject to disciplinary action, additional training and greater scrutiny of your efforts. This can be uncomfortable, embarrassing and you may not even agree that your performance is poor.

Most employees will want to defend their work and secure their role within the company. The following guide explains what to do if you face a poor performance allegation by your employer, what your rights are, how the employer can lawfully manage performance quality and whether you can legally be dismissed on these grounds.

What constitutes poor performance at work?

Your job description and employment contract should clearly detail what is expected of you within your role and the level of work and/or results that your employer expects to receive. There are several types of poor performance, many of which will be specific to your role, but some of the more obvious examples include:

• Not hitting sales targets
• Failing to complete training programmes
• Failing to deliver quality customer service
• Receiving multiple complaints from customers or consumers
• Not completing the required level of work within expected timeframes
• Producing work of a substandard quality
• Poor conduct such as unacceptable time management, inappropriate attire, inability to liaise with colleagues or customers appropriately.

If your employer alleges poor performance about your work, they must detail their reasons for this. This should give you a thorough understanding of where your performance levels have fallen short of expectations.

Should my employer follow a formal process in a poor performance allegation?

The law dictates that employers must follow a fair process to legally demonstrate poor performance. This means that if your employer believes you are incapable of or have not delivered the expected level of work, they must follow a fair process to take disciplinary action or to dismiss you. If a fair process has not been followed, you may be entitled to make a claim for unfair dismissal against them.

It is likely that your employer will attempt to address performance-related concerns with you informally to begin with. They might have an informal meeting to highlight their concerns and to give you the opportunity to make changes to your performance, prior to the employer needing to take a more formal disciplinary route.

Should your employer need to take a formal route, they should follow the ACAS Code of Practice, which gives them guidance on how to manage employment situations fairly and lawfully. It is also likely that your employer will have their own disciplinary procedures (often, a copy of which is referred to in your employment contract to make the procedures contractually binding), but their in-house policies must be no less than the ACAS Code.

What process should be followed according to the ACAS code?

The ACAS code aims to set out fair and clear points that must be followed when an employer wants to tackle poor performance with one of their staff members. The following should be followed by all employers in these circumstances:

An investigation should be carried out by the employer.

Before the employer takes any disciplinary action against you, they must have conducted a thorough investigation first, to prove their concerns about poor performance. The investigation may include quality checks for your work, reviewing any appraisals that you have had and confirming whether you have had any previous disciplinary action relating to the standard of your work. This investigation might lead the employer to recognise faults on their part, such as inadequate training or not supplying the required tools or support for your job. If they attempt to terminate your employment when they are at least partly to blame for your work performance, this may amount to unfair dismissal and you could be entitled to bring a claim against them.

The employee should be told what the problem is and formal notification of a disciplinary meeting should be given.

If following their investigation, your employer decides that disciplinary action is necessary, they should confirm this to you in writing. Their letter should explain what they believe to be poor about your performance and the potential consequences of this, which might include a warning, additional training or even more severe disciplinary action. The employer should also provide evidence to back-up their allegations, along with the details of when and where your disciplinary meeting will be held. You should have your right to be accompanied by a trade union representative or colleague communicated to you too. You should have your right to be accompanied to the meeting communicated to you if there is the potential of a formal warning or alternative disciplinary action as a result of the meeting.

The employee should be given warnings about their poor performance and an opportunity to improve.

Your employer must consider the subsequent action that should be taken after the disciplinary meeting with you. This might be that the employer sets out a new training program for you or it could result in disciplinary action. The usual course of action for a poor performance disciplinary meeting is that the employer issues a first written warning. The warning will set out the reasons why your performance is considered to be poor, along with the improvement that is required and a relevant timescale. During this improvement period, your work should be reviewed and feedback given to you.

The employer should also be given details of further consequences if the improvements are not made within the required timescale. This could mean a final written warning or even dismissal.

The employee should have the right to appeal the employer's decision.

If you disagree with the employer's decision at any stage in the above process, you have the right to appeal. The employer should tell you about this right when they notify you about the disciplinary meeting and they should also detail the timescale for making appeals, which is usually 5 days.

ACAS details that employers should treat appeals fairly and impartially and that your appeal should be reviewed by a different manager than the one handling your disciplinary. In an appeal meeting, you will also have the right to be accompanied.

My employer wants to put me on a Performance Improvement Plan. What is it?

A Performance Improvement Plan, usually referred to as a 'PIP', is a commonly used process by employers to enhance the performance of a member of staff. If the employee's performance is below the expected level or quality, the employer might introduce a PIP in order to formally detail what improvements are needed, how they will be achieved, how they will be monitored and the expected timeframe for results.

The employer should set out the PIP in writing to the employee, following a meeting to discuss their concerns about performance. The written PIP will usually include the employer's formal disciplinary process.

The contents of the PIP will be specific to your circumstances and should include the following:

• Why the employer has decided there is a case for poor performance, clearly detailing where you are falling below expectations.
• A clear set of objectives for improvement which should be reasonable and measurable.
• Confirmation of what, if any, training and additional support will be given to you.
• Information on how and when your work will be monitored throughout the PIP.
• A clear description of the consequences if you fail to improve your performance as required.

I think my PIP is unfair. What can I do?

Receiving a PIP can be stressful and somewhat embarrassing, particularly if you have worked for your employer for a long time. If you have previously worked well within the firm, the introduction of a PIP may come as a surprise and so it is important to be objective about the reasons for why it was issued.

You may believe that your work is of a good standard and that you perform well within your role. Perhaps you have a poor relationship with a new line manager or the company has introduced new systems or processes that are unfamiliar to you. You may believe that your role has adapted significantly but that your employer has not provided adequate training or that your employer has increased targets to unreasonable levels. Whatever your reason for believing that the introduction of a PIP is unfair, it is important to raise your concerns calmly, professionally and formally.

Assess whether others in your company who work in the same position or a similar role are performing to the same standard as yourself. If you believe that they are and that the contents of your PIP are unfounded or unreasonable, you should lodge an appeal (usually within 5 days) to your employer. As noted above, this will result in an appeals meeting, ideally with a different manager to the one that is dealing with your disciplinary and your response will be formally processed and recorded. This is important because if your employer tries to manage you out of the businesses unfairly, you will have grounds to bring a case against them for unfair dismissal and the record of your appeal will be reviewed in court.

My employer has approached me with a financial settlement, what should I do?

If your employer attempts to offer you a financial settlement, often referred to as a 'protected conversation', you may be tempted to leave and take the money. This comes with its own risks though as accepting a payment would mean that you cannot refer to discussions about your performance that result in this outcome if you take a case to an employment tribunal.

It is not necessarily underhand for your employer to do this as a protected conversation can help both parties avoid lengthy improvement plans and additional disciplinary action.

If you are offered a financial settlement, ACAS sets out that you should have 10 days to think about the offer before having to make a decision (though you can make a choice earlier if you want to).

It is wise to seek legal advice if you are offered a financial settlement by your employer before accepting. This will help you be sure that you are being offered a fair sum and that your employer is acting lawfully and reasonably for your personal case.