Dismissed for Poor Performance: PIPs and Capability

Being dismissed for poor performance in Ireland is lawful only where the employer can prove a shortfall in capability, competence or qualifications and a fair process for dealing with it. The performance improvement plan is where both are built or lost. This guide sets out what the Unfair Dismissals Acts 1977-2015 require of a capability dismissal, how a PIP should run, what to do while you are on one, and what to check if it has already ended in dismissal.

1. Capability Is a Fair Ground, but the Employer Must Prove It

Section 6(1) of the Acts deems a dismissal unfair unless, having regard to all the circumstances, there were substantial grounds justifying it. Section 6(4) lists the grounds that can justify a dismissal, and the first of them is the capability, competence or qualifications of the employee for the work they were employed to do. Poor performance sits there. An employer is entitled to dismiss an employee who cannot do the job; what it is not entitled to do is assert the shortfall and stop. Because the burden is on the employer, the WRC will want to see that the standard was set, that it was communicated, that the employee fell short of it, that a genuine opportunity to improve was given with the support needed, and that dismissal was proportionate to the shortfall that remained. Each of those is a question of evidence, and the evidence is the paper trail the PIP creates.

2. What a Fair Capability Process Looks Like

There is no statutory template for a performance process, but the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000) sets the floor for any dismissal, and the WRC reads performance cases against it. Put together, a fair capability process has these elements:

• The standard, in advance: the employee knew what was expected before being told they had failed to meet it;
• The shortfall, in writing: specific examples, not a general impression;
• A plan with real targets: measurable, attainable, tied to the job, and over a period long enough to show improvement;
• Support: the training, coaching, resources or time the plan promised, actually delivered;
• Reviews during the plan: written, dated, and candid about progress;
• A clear warning: that dismissal is the consequence if the standard is not reached;
• A hearing before any dismissal: with the right to be represented and to answer the case;
• A proportionate decision and an appeal: taken by someone other than the manager who ran the plan.

An employer that can show all eight on paper has a strong position. An employer that can show three has a dismissal it will struggle to defend, however poor the performance really was. The practice page on performance plans, demotion and pay cuts explains how the firm tests each element.

3. Reading the PIP Document

The plan itself tells you most of what you need to know about how the employer sees the process ending. Read it for four things. The targets: are they measurable, are they ones the rest of the team is held to, and could anyone meet them in the time allowed? The period: does it match the targets, or is it a few weeks for an improvement that would take months to demonstrate? The support: does the plan name the training, coaching or resources that will be provided, with dates, or does it say “support will be available” and nothing more? The consequence: does it say that the job is at risk, and does it set out the hearing and appeal that will follow? A plan that is vague on all four is weak evidence for the employer and, if it ends in dismissal, strong evidence for the employee. A plan that is precise on all four should be taken seriously from the first day.

4. What to Do While You Are on a PIP

The employee’s job during a plan is to build the other half of the record. Respond in writing to the plan within days: which targets you accept, which you dispute and why, and what support you need. Ask for the first review date in writing. After every meeting, send a short email summarising what was said and agreed, so that the employer’s note is not the only note. Ask for the support promised, in writing, and record whether it was delivered. If a target is changed mid-plan, record that too. If you believe the plan is a pretext, raise a grievance under the employer’s own procedure, because the WRC expects that procedure to have been exhausted before any constructive dismissal claim is brought, and because the grievance obliges the employer to investigate its own process. And do not resign. A resignation during a PIP hands the employer the outcome it wanted while shifting the burden of proof onto you.

5. The Hearing and the Appeal

A plan that ends in a shortfall should end in a hearing, not a letter. The employee is entitled to know the case in advance, to be accompanied by a representative, to answer the evidence and to have the decision taken on what was said. The sanction must be proportionate: an employer that has not considered a further period, a different role or a final warning has a weaker case for dismissal than one that has. There must be an appeal, and it must be real, which means it is heard by someone who did not run the plan or take the dismissal decision. After any dismissal, request the written statement of the reasons under section 14(4), due within 14 days. The employer is fixed to the reasons it gives, and a statement that refers to something other than capability, or to nothing at all, is the start of the unfair dismissal case.

6. When Performance Is Not the Real Reason

The strongest performance cases for an employee are the ones where performance was never the point. Timing is the clearest evidence. A plan that begins within days of a grievance, a complaint about a manager, a protected disclosure, a request for leave or a return from maternity leave invites the inference that the plan was the response. Where the dismissal in fact results from pregnancy or family leave, trade union activity, a protected disclosure or the exercise of minimum wage rights, section 6(2A) removes the one-year service requirement and the dismissal is deemed unfair regardless of the plan. Where the real reason is a personality clash, a cost cut or a manager’s preference for someone else, the employer cannot bring itself within section 6(4) at all. The guide to dismissal after raising a grievance or complaint deals with the timing evidence in detail.

7. The Exit Offer in the Middle of the Plan

Many plans end in a meeting at which the employee is offered a sum to leave. Ireland has no equivalent of the UK protected conversation, and without prejudice privilege attaches only where a dispute already exists, so an offer made out of the blue during a performance process is not automatically off the record. An exit offer made during performance management can support a constructive dismissal claim, because it is evidence that the employer had already decided the employment was ending. Do not agree, refuse or sign in the meeting; ask for the offer in writing and take advice on it. Our guide to without prejudice exit conversations explains the rule, and a settlement agreement should be reviewed before signature by our sister site at settlementagreementsolicitor.ie.

8. Deadlines and Redress

A WRC complaint must be lodged within six months of the date of dismissal, extendable to twelve months only where reasonable cause prevented an earlier complaint (section 8(2)). The date of dismissal is the date notice expired or, where no proper notice was given, the date proper notice would have expired (section 1). Redress under section 7 is reinstatement, re-engagement or compensation for financial loss attributable to the dismissal, up to 104 weeks’ remuneration, or up to four weeks’ remuneration where there is no financial loss. Nothing is awarded for stress, and the employee must mitigate by seeking work from the day of dismissal and keeping proof of it. The Dismissal Claim Route Finder shows which routes fit your position in three questions.

9. Checklist

• Keep the plan, every review note and every email about it from day one;
• Respond to the plan in writing and summarise every meeting in writing afterwards;
• Ask for the promised support in writing and record whether it arrived;
• Note the date the plan started and what else happened in the fortnight before it;
• Raise a grievance if the plan is a pretext; do not resign;
• After any dismissal, request the written reasons under section 14(4) and start the job search the same week.