To the chagrin of many employers, the chances of being deemed to have fairly dismissed an employee on the grounds of competence or performance are slim. For example, in 2005 the Irish Business and Employers’ Confederation warned its members that dismissal on the grounds of competence ‘is a difficult area to establish’ and ‘usually involves protracted observation and possible fluctuations’.

Recent research undertaken at the Dublin Institute of Technology seems to confirm this warning. From a representative sample of almost 400 dismissals contested before third parties over the 2008-14 period, in just over 5 per cent of cases was performance, performance management or performance appraisal and associated management best practice(s) influential in the determinations.

However, in an attempt to address this issue, recent developments in the world of work have seen the practice of deploying a Performance Improvement Plan (PIP) return to the fore, as a means of addressing underperformance.

For example, the Irish Civil Service now applies PIPs as a ‘clear process to both managers and staff who have not improved following interventions made through regular performance management processes’, including their Performance Management and Development System. According to the Department of Public Expenditure and Reform, this new PIP regime is ‘built on principles of natural justice and closely reflects good Human Resources (HR) practice in other sectors’. Under their PIP scheme, underperformance issues are handled informally, but if unresolved, the PIP kicks in and can progress for up to five meetings.
If by the end of the PIP process, performance has not improved, the employee can be dismissed.

The Law and PIPs

Significantly, the PIP practice and process has featured recently in dismissal cases coming before third parties. For example, late last year an Adjudication Officer (AO) at the Workplace Relations Commission (WRC) upheld the employer’s decision to dismiss a supervising pharmacist after he failed the PIPs he was put on (Ref.: ADJ-00005177). The Adjudicator noted that the employer provided the complainant with ongoing mentoring and support throughout the PIP period and that it had even extended the plan’s duration on his request.
She also noted that the employer’s procedures ‘were clear and detailed and were available at all times to the complainant’, and the pharmacist had been informed of his performance issues, what was expected of him and the consequences of not achieving his PIP.

At around the same time another Adjudicator at the WRC found an employer’s dismissal of an accountant to be fair, where the process included the application of a PIP in a process that was deemed reasonable and in line with procedures and natural justice(ADJ-00000155). The AO recorded that the employer had used PIPs with other employees and had tried to use one with the accountant who didn’t cooperate, as he claimed that it was ‘rigged’ for him to fail.

Real Commitment

Of course to succeed in a contested dismissal case it’s important for the employer to be able to show that they really committed to the PIP process, otherwise – like in the 2009 Boston Scientific case – it may be held that they produced ‘no evidence  ... to show that training was made available to the claimant to address his shortcomings....’ (John Mullaney v Boston Scientific – UD 1924/2009). A similar deficiency in such scenarios surfaced some years later when the Employment Appeals Tribunal determined that the Irish Wheelchair Association should have ‘engaged more constructively’ with the claimant around the implementation of the performance improvement process (Liam Whelan v I.W.A Ltd t/a Irish Wheelchair Association - UD 436/2014).


However, where it can be shown that the employer implemented a PIP and (as noted by the Employment Appeals Tribunal) ‘behaved reasonably at all times and did its utmost to support the claimant ... affording him every opportunity to adapt to the particular requirements of the respondent’s business’ the decision is likely to go in the employer’s favour (Gerry Finnegan v Connaught Electronics T/A Valeo Vision Systems – UD 1475/2014).

Perfect PIPs

The effective application and legal status or merit of PIPs relies heavily on good coaching techniques. Coaching for improved performance normally arises and focuses upon the employee(s) whose performance has fallen below the minimum acceptable standard for the role. Whilst all cases are individually assessed, the most common product in such circumstances is some form of PIP, commonly scheduled to take effect over a 3-month period. The successful resolution of an underperformance problem will normally be attained by tackling the issue(s) at the earliest opportunity, identifying and agreeing the problem, deciding and then agreeing on the action(s) required and resourcing and monitoring these action(s).

However, research confirms that a significant obstacle to effective coaching (or PIPs) is that managers are often neither interested in nor capable and confident about the practice. This has significant implications for the organisation attempting to tackle underperformance (and\or promote a coaching culture).

To maximise the prospect of effective coaching at work where performance improvement is warranted, application of the following guidelines can enable a successful outcome.

Phase 1 - Before The PIP Meeting

• Assemble and review all of the relevant evidence relating to the employee’s past performance (e.g. performance management forms, interim reviews, job description\role profile, performance and development trends).
• As part of the information gathering process the following questions should be asked:

-       Is the problem attributable to the employee’s performance, attitude and\or behaviour?

-       At what point did the employee become (or was made) aware of the problem?

-       What, if anything, was done about it?

-       How did the employee react when asked to comment on the problem?

-       Was the problem issue discussed with the employee when it first became apparent?

-       Has the problem issue been raised by the employee’s colleagues? By clients? How often?

-       To what extent have the employee’s Specific, Measurable, Agreed, Realistic and Time bound (SMART) objectives been achieved?

-       What concrete examples are there of sub-standard performance\ behaviour\attitude?

-       Did the employee fully understand what they were expected to achieve?

-       Were these expectations fair, given the employee’s experience and\or qualifications?

-       Was the problem caused by inadequate knowledge or a lack of skill?

-       Did job design or resource levels contribute to the problem?

-       Did the employee get sufficient support from their manager and colleague(s)?

-       What (verifiable) evidence is there that the employee’s attitude/ behaviour is causing the problem?

-       Has the employee the ability to bridge the gap and perform effectively in the role?

-       Has consideration been given to the fact that it is normally easier to change behaviour than attitude?

-       How have\are others in equivalent roles performing?

-       In the course of previous exchanges, has the manager been successful in obtaining agreement on the cause of the problem(s) and what will be done about it? What happened?

-       Is this a problem warranting external help (e.g. counselling) and\or the disciplinary route?

• Agree the meeting time and place in advance with the employee – ensuring that adequate time is allowed and that the setting is appropriate.

Phase 2 - During the PIP Meeting

• Encourage the employee to diagnose and prescribe in respect of the problem performance.
• Ensure that the employee understands the reason(s) for devising a PIP. This obliges the manager to clearly outline the specific areas of underperformance and the requisite improvement, together with the process for monitoring this improvement.
• Focus on facts and related behaviours, not personality (e.g. the SMART objectives set at the last review).
• Keep an open mind and be sensitive in the diagnosis of the employee’s underperformance, appreciating that not all solutions are immediate or within the manager’s remit (e.g. they may require referral to the organisation’s Employee Assistance Programme or Learning & Development department).
• Deploy a positive and progressive attitude, along with a calm and professional disposition (n.b. this is not a disciplinary meeting, (ideally) it is part of the team leader’s and team member’s ongoing constructive coaching relationship).
• Set and confirm the SMART (performance and development) objectives in the PIP improvement process.
• Ensure that the employee understands the implications of continued underperformance vis-à-vis the organisation’s disciplinary procedure.
• Confirm the required support actions\resources.
• Agree the improvement time-scale cum review schedule and diary it.
• Keep a record of the meeting and the agreed actions\outcomes and furnish the employee with a copy.

Phase 3 - After The PIP Meeting

• Follow up and deliver on the promises made at the PIP meeting (i.e. support actions\resources, reviews).
• As part of the review process give specific feedback vis-à-vis the SMART objectives, ensuring that the employee is made fully aware as to whether they are adjudged to be making the required improvement.
• Give appropriate positive feedback to acknowledge any improvements made.
• If improvements are made, update the employee’s SMART objectives bringing them to an acceptable level (e.g. vis-à-vis peers’ performance levels), whilst maintaining a coaching and monitoring role. For example, a second PIP may now be appropriate.
• Should performance gaps persist, consult with one’s manager and the HR professionals to determine the options for progressing matters.
• In the event that no progress has been made under the PIP, confirm and diagnose the persistent performance gaps and determine whether new or revised SMART objectives or an updated PIP is required.  The consequences for the employee of continued underperformance should also be confirmed. It may also be decided to progress matters via the disciplinary procedure. The relevant follow-up actions\supports will have been determined in the earlier consultations with one’s manager and the HR professionals.
• Document the revised PIP arising from the meeting, ensuring that the employee secures a copy; or in the face of persistent underperformance convene a meeting under the organisation’s disciplinary procedure.

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Dr. Gerry McMahon is delivering two of Legal-Island's practical workshop events in May:

Successful Negotiating Skills: Getting to Yes (3rd May 2018, Radisson Blu Hotel, Dublin Airport)

Successful Selection Interviewing (30th May 2018, Radisson Blu Hotel, Dublin Airport)