Capability and performance

You might be experiencing issues with your job performance or capability to perform your job role, which could potentially lead to dismissal. These issues often revolve around missed sales targets, work errors, inappropriate interactions with customers or clients, or resistance to change.

If your employer has presented a settlement agreement due to performance or capability concerns, this guide aims to assist you in navigating the process and understanding your legal position. It will help you assess any settlement proposal made by your employer in light of these performance issues.

Performance and capability concerns are often part of disciplinary procedures. Sometimes, unless genuine performance issues exist, the employer's aim might be to terminate your contract. Claims of performance and capability problems could be a facade to conceal the real reasons behind ending the employment relationship.

Why has the employer raised performance issues?

Performance and capability issues can serve as grounds for a legally 'fair' dismissal based on an employee's capability. In simpler terms, your employer alleges that your performance is not meeting expectations, rendering you incapable of fulfilling your duties. If the employer can demonstrate a fair procedure was followed, a decision to dismiss based on performance or capability grounds could be considered fair. However, if due process wasn't followed, or you can prove the alleged performance issues were invalid, you might have a case for unfair dismissal if you've been terminated.

What should an employee do if the employer questions your performance?

They must:

• Investigate any alleged performance or capability issues.
• Clearly inform you about under-performance and provide clear warnings.
• Offer you a reasonable opportunity to improve.
• Genuinely believe you were incapable of doing the job and there were reasonable grounds for this belief.
• Conduct a proper investigation into your performance.
• Provide suitable alternative work if feasible.
• Follow a fair process, often known as a 'performance improvement plan' (PIP).
• Give you the chance to address the alleged performance and capability issues.

Performance Investigations

Your employer must carry out a reasonable investigation to establish the nature of any poor performance. If you are considered to be under performing you should be notified in writing, setting out the alleged areas of under performance and the likely consequences if performance does not improve.

Why have you been offered a performance Settlement Agreement?

There could be many reasons why an employer has proposed a settlement agreement during the course of a performance related process.

The main reasons tend to include:

• The employer might perceive flaws in their process that could lead to legal claims.
• The allegations about performance might be baseless.
• They might want to expedite termination through a settlement agreement for a swift resolution.