This article explains what performance improvement procedures (PIPs) and performance improvement plans are and outlines your rights when you’re participating in a PIP. We also look at what to do if you’re facing ‘performance management’ procedures and how to negotiate fair compensation in the form of a settlement agreement in the circumstances.
Links to further sources of information about this and related topics are given throughout.
What are performance improvement procedures and plans?
One of the most common scenarios which leads to a settlement agreement is the commencement of performance management procedures – aka ‘PIP’ – or performance improvement procedures.
A performance improvement procedure usually refers to the ways in which your performance is managed, monitored and measured during the timescale set for you to improve your performance.
At the heart of a performance improvement procedure is a performance improvement plan. This is a written document which contains a number of time-constrained work-related goals. These goals are designed specifically to be attained by you, if your employer thinks your work performance needs significant improvement.
A performance improvement procedure is typically spread over anything from 30 to 90 days, so as to give you enough time to achieve the goals set out in the plan.. These goals should be:
- realistically achievable in the time allotted
- prioretised if appropriate
- consistent with your qualifications, skills sets and job description
- objectively measurable/quantifiable in some way
- designed specifically to meet identified shortcomings in your present job performance.
What are your rights when participating in a PIP?
Your rights begin from before the commencement of your plan, through to your attainment of the goals set out in it, and beyond. They include the right to the conduct of a fair PIP procedure from start to finish as summarised below:
- Before you embark on the plan:Before you agree to participate in a performance improvement procedure, you have a right to know why you have been selected for it. A PIP may not be the best way to meet your work-related needs and you might have been targeted to fail the PIP exercise, just so your employer can get rid of you.
- When the plan is drawn up:You should ideally be involved in drawing up your plan, but that’s not an obligation on the part of the employer. At the very least the goals should be clearly explained to you so that you fully understand each and every one of them. Your PIP goals should of course also be correctly identified and clearly specified, as mentioned above.
- During the PIP timescale: Once you’ve embarked on your PIP, you may discover that some of the goals are not achievable within the time allocated to them, or for reasons outside of your control. Your employer should be asked to revise any such goals, but if they won’t, then you have a potentially unfair procedure.
- At the end of the PIP timescale:Similarly, if you haven’t achieved every single one of the goals, then there is once more potential for a dispute, especially if your employer starts disciplinary proceedings as a result.
Should you stay or leave when facing a PIP?
If and when you successfully complete your PIP, then of course you have the right to continue in your current job and you may be relieved and delighted to do so. Many employees pass performance improvement plans and go on to remain with the company for months, even years. If that’s what you want to do, then we would always encourage you to stand and fight for your right.
However, once an employer raises the prospect of a PIP, the trust often goes between employer and employee and with that goes the future of the relationship. In these circumstances, our advice would be to think long and hard about whether you have a future working for your employer. For example: What will happen if you don’t survive the performance management process? After what you’ve been through, are you going to be happy in your role even if you survive the performance procedures?
It’s also worth remembering that, if an employer has sufficient concerns about your performance to the extent that they are willing to engage you in formal procedures, then the chances are that they want you to leave.
You can either accept that the writing is on the wall and therefore that it’s time to move on with the best possible financial start to a new job, or alternatively, you can decide to stay and fight for your current role.
What if your employer would prefer you to leave and not complete a PIP?
If your employer would prefer you to leave rather than take you through the PIP procedure, then you are likely to hear about it when the HR department invites you into a meeting to commence PIP procedures. At that meeting they may well have a ‘without prejudice’ conversation or a ‘protected’ conversation with you and offer you a settlement agreement before the performance procedure has actually commenced.
HR departments have to be careful about this though. That’s because, in certain circumstances, if you are unaware of any pre-existing issues and no performance process has started, there is a possibility that the offer will not be afforded protection (i.e. the conversation will be ‘on the record’).
If that’s the case, you will be in a stronger negotiating position as you can allege that the result of any performance management procedure is a foregone conclusion and therefore that the dismissal is potentially unfair.
Having said that, most employers get it right and it is often legitimate to offer you an ‘either/or’ scenario: take the money and go now with a reference, or face the uncertainty of the performance procedure.
If your employer has a protected conversation with you and makes an offer to terminate your employment rather than going through performance procedures, then you don’t have to respond to that offer there and then, but you can tell them you will respond by letter shortly. This will help ensure that there is no misunderstanding about the offer. It will also give you time to think about it, and to seek legal advice if you want to. (Your response should be a Without Prejudice letter.)
What if you would prefer to leave and not go through a PIP?
Equally, from the moment you find out you’ve been selected for a PIP – and thereafter at any point during the procedure – you yourself may decide that you are just being badly treated, that you don’t want to continue and that it’s time to leave your employment.
In the latter case, a scenario exists which is ideal for achieving a settlement: both parties want a deal. The employer at the very least recognises that there is a problem and wishes to resolve it one way or the other. You recognise that it may be time to move on rather than face performance management procedures. So now it’s really just about finding the middle ground for your financial settlement agreement.
If you want to negotiate an exit settlement, then you should consider adopting a negotiating stance designed to short-circuit the performance improvement process. Basically you will send them a suitable without prejudice letter offering them a solution to their problem: you will leave quietly in return for a settlement payment. By these means you can:
– remove the risk of a tribunal claim,
– use your resignation as a negotiating tool and offer to remove yourself from the organisation,
– reduce the management time already committed.
All your employer has to do is pay you the money they would have had to pay anyway in taking you through these procedures, and that’s how you should be pitching it throughout your negotiations.
You should be asking for your notice paid in lieu, a reference (and this is an important reason for you to settle a performance case) and the money your employer would have spent on your wages during the performance procedure, paid gross as an ex gratia payment.
Your argument should go something like this: ‘You, my employer, are going to take six months to conclude an uncertain process at the end of which you have to pay me notice and I will retain my rights to sue for unfair dismissal, so we should conclude this now by you paying me six months’ gross salary, my notice and giving me a reference’.
Have a look at our guide on negotiating a settlement agreement to get a better idea of how to conduct such a negotiation.
If your employer doesn’t accept your proposals, instead saying that it will more likely be three months, then they will often settle at between four and five months’ gross salary, leaving you to move on to another role with enough money to see you through.
If you fail the performance improvement procedure, can you still negotiate a settlement payment?
If you decide to brave it and go through with the performance improvement procedure, but then fail it, you may still be entitled to leave with rather more than just statutory notice pay. If the rights outlined above have not been upheld at any point in your performance improvement procedure, you may be entitled to financial compensation for having been put through an unfair and stressful procedure.
If you have good evidence of any failings on the part of your employer in drawing up the plan or in conducting the procedure, you may well be able to negotiate a fair payout. Settlement by negotiation is always preferable and your employer will most likely prefer it that way too, once they understand that you have a valid claim against them.