Going through a performance improvement plan UK can be a tough time at work. When disabilities intersect with performance improvement plans, navigating the process can be even more complex. This guide aims to demystify performance improvement plan disability issues, focusing on employees’ rights, ensuring reasonable adjustments, and maintaining legal compliance. Expect to find clear guidance to approach performance improvement plans in the context of disability confidently.
Key Takeaways
- A Performance Improvement Plan Disability (PIP) should recognise the relevance of a disability or risk failing foul of the Equality Act 2010 (disability discrimination). For example, failing to implement reasonable adjustments.
- Employers are responsible for providing reasonable adjustments (if the duty arises) that can include policy changes or additional support.
- If discriminated against, disabled employees are entitled to seek legal advice and challenge unfair PIPs, with employment tribunals serving as an avenue for claims related to unfair dismissal or disability discrimination. Please note, that claims of unfair dismissal require at least 2-years of continuous service as an employee, but claims of disability discrimination do not.
Understanding Performance Improvement Plans and Disability
A Performance Improvement Plan is a tool designed to enhance an employee’s performance by addressing specific issues and monitoring agreed targets over a set period. This process often becomes more nuanced when it intersects with the provisions of the Equality Act 2010, which prohibits discrimination against employees with disabilities.
The main types of discrimination are “direct” and “indirect,” which apply to all protected characteristics. However, with disability discrimination, there are also claims of “failure ” and “discrimination arising from disability.”
Defining Performance Improvement Plan Disability
A PIP is typically used to manage underperformance. It serves as a formalised performance improvement process to address and improve performance issues. A PIP includes:
- A detailed description of the performance issues
- Necessary improvements
- Specific and achievable goals
- Additional resources to facilitate employee development
In this context, performance management plays a crucial role in ensuring that employees are guided and supported through the PIP to achieve their goals.
The plan also outlines a timeframe within which objectives must be met and specifies sanctions, including possible termination, if the employee fails to show the improvement expected.
However, PIPs are commonly used as a mechanism to manage employees out of the business and are often a segway to the employee leaving the business via a settlement agreement. It is therefore crucial to understand if the PIP is genuinely being used to improve your performance or as a tool to facilitate your exit.
Disability Considerations in PIPs
The PIP process takes on added complexity when dealing with disabled employees. For example, an employer may be obliged to make reasonable adjustments to eliminate any substantial disadvantages they may face. This could include providing assistive technology or altering work patterns to accommodate their disability. Further, if the alleged performance issues arising as a consequence of the employee’s disability, then the commencement of the PIP may be disability discrimination.
Legal Protection for Disabled Employees
The Equality Act 2010 mandates employers to make reasonable adjustments for disabled employees in certain situations. Dismissal of a disabled employee might be justified only after showing that all possible support and adjustments have been made, and the decision to dismiss is reasonable in all circumstances.
It is important to understand when you are entitled to reasonable adjustments and what action you can take if the PIP relates to issues linked to your disability. You must also understand the definition of disability under the Equality Act 2010.
When Reasonable Adjustments are Required
A reasonable adjustment is a change deliberately designed to remove any barriers that a disabled employee may be facing because of:
- A physical feature of the workplace premises. This relates to the layout of the premises. For example access to a disabled toilet for a wheelchair.
- A failure to provide an auxiliary aid which could relate to the sourcing of software or extra equipment for someone who is deaf.
- A provision, criterion or practice. This typically refers to working arrangements such as shift patterns or working hours.
Further, the Equality Act 2010 also states that where the provision, criterion or practice or the need for an auxiliary aid relates to the provision of information, the employer must make adjustments to ensure the information is accessible. This could be through specific equipment ie. signs in Braille.
Identifying Necessary Adjustments
Modifications or provisions made by employers to avert workplace disadvantages for disabled employees are known as reasonable adjustments. Adjustments might involve:
- Changes to policies
- Changes to the workspace
- Providing extra equipment or support to reduce or remove disadvantages related to the employee’s disability
The employer bears the responsibility to pay for necessary adjustments, and failing to make such adjustments can constitute discrimination under the Equality Act 2010.
The adjustment must effectively reduce the disadvantage, be practical, affordable, and not harm the health and safety of others to be deemed reasonable. Identifying necessary adjustments often requires open discussions, taking into account their performance issues and potential support needs.
Implementing Adjustments in the PIP Process
A disabled employee may be entitled to reasonable adjustments that impact a PIP. For example, a disabled employee may require different performance measures as a reasonable adjustment.
The PIP process itself may need to be amended as a reasonable adjustment, such as the timescale afforded to meet targets and improve performance.
Some other adjustments may include:
- accepting a higher level of sickness absence
- changing working patterns
- providing adapted equipment
- offering one-to-one support
If performance doesn’t improve despite reasonable adjustments, then an employer may be able to dismiss fairly, but this will depend on the situation and how the dismissal was handled.
Responding to a Performance Improvement Plan as a Disabled Employee
A disabled employee presented with a PIP has various avenues to explore. They can:
- Seek advice to understand more about their rights and the situation
- Request reasonable adjustments if they believe this would support their performance improvement
- If the employee does not agree with the PIP, they should not sign the document and instead seek advice.
The handling of PIP is often relevant to constructive unfair dismissal (if you have at least 2-years continuous service as an employee).
Requesting Reasonable Adjustments
Disabled employees should:
- Inform their employer about their disability
- Explain the impact it has on their ability to perform at work
- Ensure awareness and understanding of the necessity for reasonable adjustments.
To formally request reasonable adjustments, disabled employees should discuss their performance-related needs with their employer and provide specific suggestions on the support and changes needed to improve their work.
The starting point to any disability discrimination issue is (1) showing there is a disability and (2) that the employer knew about the disability. Further, with reasonable adjustments, you must be able to show that the employer was aware of the substantial disadvantage that meant reasonable adjustments were needed.
Seeking Legal Advice and Support
Should a disabled employee suspect unfair treatment or discrimination, seeking legal advice can provide effective ways to address the situation. Legal advice is essential in clarifying if the actions of an employer may constitute disability discrimination under the Equality Act 2010.
Legal firms like Toner Legal represent employees in challenges at work, advising on rights and legal recourse. Disability discrimination is a complicated area of law and many misconceptions exist (understanding your rights can make a real difference.
Challenging Unfair Performance Allegations
In instances where an employee perceives a PIP as unjust, especially when non-compliance could lead to dismissal, they have options to address the situation. The option will often depend on the outcome they seek, which are often to stay employed (so survive the PIP) or to leave the business (ideally with financial compensation).
A disabled employee who faces what they consider unfair performance allegations may have additional options to rectify the situation, which often require professional advice (due to short time limits in such situations, it is advisable to seek help asap).
The Role of Employment Tribunals in Performance and Disability Disputes
Various claims may arise from a performance improvement plan being implemented at work. Such claims can be dealt via an Employment Tribunal Claim.
An Employment Tribunal Claim can take a long time and it is not usually the best and/or only option. Before seriously considering commencing litigation, you should be fully informed of the process and all of your options.
However, if you have been dismissed after being subjected to a performance improvement plan and you consider this to be disability discrimination and or an unfair dismissal, then a claim to the Tribunal may be a legitimate route to justice and compensation. Please check if you have Legal Expenses Insurance, which can play an important role in funding a Tribunal claim.
Filing an Employment Tribunal Claim
Making an employment tribunal claim is a serious step, reserved for instances of unlawful treatment by an employer, such as unfair dismissal or discrimination at work. Claims to the tribunal are typically required to be made within 3 months less 1-day of the employment ending or the incident occurring, with this timeframe paused during Early Acas Conciliation – see our Employment Tribunal Time Limit Calculator for more information.
Alternatives to Undergoing a Performance Improvement Plan
Alternatives exist for those seeking different paths to a Performance Improvement Plan. One such alternative is a Settlement Agreement, which can be offered as an alternative to participating in a PIP process. However, legal advice should be sought before initiating this step or immediately after an employer raises this as an option.
It is strategically advantageous to negotiate a settlement with the employer before being dismissed or deciding to resign.
Negotiating Settlement Agreements
Negotiating Settlement Agreements requires a specialist in this field. In order to maximise your chances of getting the best terms and highest financial compensation, it is important to be supported by an employment law expert with significant experience in negotiating.
Often, those that remain employed, with at least 2-years service that have been subjected to a PIP, are in a position to negotiate an exit with substantial financial compensation, meaning they can avoid being dismissed and look for a new position with a lump sum acting as financial security.
Considering Other Employment Opportunities
Another alternative to undergoing a Performance Improvement Plan is considering other employment opportunities within the organisation. Changing the recruitment process to accommodate candidates with disabilities is an example of a reasonable adjustment to consider alternative employment opportunities within the organisation.
The Impact of Medical Conditions on Work Performance
If you have a medical condition that amounts to a disability and it is impacting on your work performance, you should seek to understand your rights and how best to manage this situation.
If you are reprimanded at work (or subjected to a performance improvement plan disability), then this may be an example of “discrimination arising from disability.” This is a common type of disability discrimination.
Summary
To sum up, understanding Performance Improvement Plans (PIP) and disability considerations is crucial. This guide has shed light on the intricate connection between performance improvement and disability, the role of employment tribunals, and possible alternatives to undergoing a PIP. By acknowledging the impact of health issues on work performance and recognising an employer’s obligation to offer support, can create a fairer workplace.
Understanding your rights before taking action is often a key step.
Frequently Asked Questions
Can a PIP lead to dismissal?
Yes, if a performance improvement plan (PIP) is not followed, it could potentially lead to dismissal. It is important to take a PIP seriously and work towards meeting its requirements. It is important to understand the importance of 2-years service and the host of claims that do not require 2-years service.
Is a PIP a disciplinary?
No, a PIP itself is not considered a disciplinary step; it is an opportunity for an employee and employer to address performance issues.
Should I quit if I was put on a PIP?
No. Even if you think the PIP is unfair, we suggest you stay employed, take advice, do so quickly. We cover this in more detail in our article on Constructive Unfair Dismissal.
What is a Performance Improvement Plan (PIP)?
A Performance Improvement Plan (PIP) is a formalised process that aims to enhance an employee’s performance by addressing specific issues and monitoring agreed targets over a set period. It is a tool designed to improve performance issues. A performance improvement plan disability is a situation that describes a disabled person being subjected to a PIP.