Ryan Clement

by

Ryan Clement, LL.M., barrister

One would think that the three words, ‘Performance Improvement Plan,’ in isolation and without context would be welcomed by most employees. After all, who doesn’t want to improve? For example, being reflective is primarily based on the concept of improving and making what was good even better.

However, in practice, it would be fair to say that an employee is rarely put on a PIP to prepare and equip them for promotion. In other words, it is not often heard that the purpose of placing one on a PIP is that the employee is performing competently at the expected level and it is to get them to the next level up. No. One is invariably put on a PIP because they are said not to be performing competently at the required or expected level demanded by their employer. Unlike with a misconduct, leading to a disciplinary and a sanction (oral or written warning or, worse, dismissal), being placed on a PIP is generally a matter of an employee’s capability.

Under the Employment Rights Act 1996, in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show that the reason for the dismissal is, in addition to some other substantial reason of a kind such as to justify the dismissal, one that relates either to the employee’s capability or the conduct. However, dealing with a capability or conduct matter is not necessarily handled in the same way. In some circumstances a conduct matter could lead to a summary dismissal, whereas regarding capability good practice is to give an employee a reasonable time to improve with clear SMART (Specific, Measurable, Achievable, Realistic, and Timely) objectives or goals within the parameters of the role they were employed to undertake. So, what is the position where an employee is put on a PIP and is dismissed for the reasons they were placed on the PIP before the time stipulated for their performance to be reviewed under or pursuant to the PIP? After all, they may not have improved sufficiently by the mid-point but may do so by the end. ‘Slow and steady wins the race,’ springs mind!

In P. Sabourin v. BT Group Plc [2025] EAT 171, the Claimant began employment with the Respondent in 2009 and became project manager in the Data Compliance and Assurance (DCA) team in November 2021, reporting to Mr. C, Senior Manager of Data Projects, who in turn reported to Mr. D, BT Director for DCA. From early 2022, Mr. C raised concerns about the Claimant’s performance, initially addressed through coaching. A formal performance review commenced in August 2022, with expectations clearly outlined. On 18 October 2022, an informal PIP was agreed, identifying nine areas for improvement. Despite weekly reviews, Mr. C observed no progress. Consequently, a formal meeting on 23 November 2022 reduced the goals to seven, and the Claimant received a first written warning, confirmed by letter on 25 November 2022. The Claimant did not appeal. 

A further formal review of the PIP took place on 5 January 2023, with the Claimant represented. Mr. C systematically reviewed each goal, identified ongoing concerns, and issued a final written warning, concluding that progress was insufficient to end the PIP. The final warning letter was issued on 9 January 2023 and advised that a decision meeting was to be held on 20 January 2023, giving the Claimant 10 working days to provide evidence of his improved performance. This was despite the Respondent’s policy stating, amongst other things, ‘usual monitoring is 4 weeks, may differ depending on role/circumstance.’

In a subsequent meeting between the Claimant and Mr. D (a more senior manager Mr. C), during which the Claimant was represented, the Claimant was informed of the decision to dismiss him in a letter dated 26 January 2023. The Claimant was in fact given notice and placed on garden leave, which ended on 1 May 2023. 

The Claimant presented a complaint of unfair dismissal unsuccessfully. The Claimant contended that, the dismissing officer, Mr. D, had not considered his record of performance in that further two-week period at all, but had relied upon the same record of performance that had already resulted in a final written warning. The Employment Tribunal did not accept that the two-week period was so short that it did not allow a fair opportunity for further improvement. The Claimant appealed to the Employment Appeal Tribunal (‘EAT’). Allowing the appeal, the EAT held that the contention that Mr. D had not considered the Claimant’s record of performance in that further two-week period at all, but had relied upon the same record of performance that had already resulted in a final written warning was a material distinct argument of unfairness that the tribunal should have addressed in its decision. It erred by not doing so. In consequence, the matter was remitted to the same judge to make a finding of fact about it, and, to decide afresh, taking account of that finding alongside the existing findings, whether the dismissal was fair or unfair.

Finally, therefore, good practice would be to allow an employee a reasonable period to complete their PIP. There will be occasions when it will be apparent, hopefully to both employee and employer, that the employee’s performance will not improve by the stipulated – and hopefully agreed – timeframe in which case fair steps in the circumstances will need to be taken. On this point, I asked an HR practitioner of a multinational company for a comment: “Where there is a huge gap in capability vs performance, it could be that the employee is so far from where they need to be that they are never going to get there (sometimes happens with a promotion), and all the PIP does is prolong the timescales, adds more stress and makes for a very unpleasant experience!”

However, in the absence of an obvious and inevitable failure of the PIP, an employee should be afforded a reasonable time to improve and provided with reasonable assistance to do so.

Copyright © Ryan Clement 2026

This article first appeared HERE

https://www.conferencechambers.com/performance-improvement-plan

Copyright © Ryan Clement 2026