Poor performance, capability and misconduct are not the same thing. A fair capability process should identify the required standard, explain the gap, provide reasonable support and time to improve, and consider disability or health issues before dismissal.
Start with the factual problem, then identify the right, evidence, remedy and route. Similar workplace situations can use different legal tests.
Key points
- Performance standards should be clear and evidence-based.
- A performance improvement plan should use realistic, measurable objectives and genuine support rather than operate as a predetermined dismissal process.
- Probation does not remove statutory rights or contractual notice rights.
- Ill-health or disability-related performance can engage reasonable-adjustment and discrimination duties.
Diagnosis
First: what exactly happened?
Work out which route fits the facts before deciding what to ask the employer to do. Similar workplace problems can use different legal tests.
| What happened? | What to check |
|---|---|
| You have been placed on a PIP | Ask for the evidence, expected standard, measurement method, support, review period and consequences. |
| Targets suddenly changed or are impossible | Compare previous objectives, peers, workload and resources; record any moving goalposts. |
| Health/disability affects performance | Raise the link and request adjustments or occupational-health input before capability decisions are made. |
| You are on probation | Check contract, notice, review terms and the actual reason for any extension or dismissal; short service is not the same as no rights. |
Who is responsible?
The employer remains responsible for complying with employment law and making fair decisions even where managers, HR, payroll, occupational health or external advisers administer part of the process.
Identify your employing entity and the actual decision-maker. If an agency, umbrella company or host business is involved, responsibility can differ by right and should be checked rather than assumed.
Capability versus misconduct
Capability concerns ability to perform; misconduct concerns conduct. Deliberate refusal and inability can require different procedures and evidence.
Performance improvement plans
A PIP should identify what needs to improve and how success is measured. Vague labels such as attitude or not meeting expectations are difficult to test unless supported by concrete examples.
Resources and training
If performance depends on training, staffing, systems or workload, preserve evidence of those conditions. An employee should not be set up to fail by withholding support needed to meet the stated standard.
Probation
Probation is contractual, not a statutory “rights-free” period. Some rights are day one, discrimination protection applies, and contractual notice may still be owed.
Capability dismissal
Dismissal should normally be a last resort after warnings, support and consideration of alternatives, subject to the facts and length of service.
Capability linked to health or disability
If performance fell after illness, medication, disability or a change in health, raise that connection early. The employer may need medical evidence and reasonable adjustments before deciding the employee cannot meet the role.
Possible adjustments can include changed duties, equipment, training, hours, targets or how performance is measured. The legal question is not whether every target disappears, but whether disadvantage can reasonably be reduced.
Probation affects process, not the existence of all rights
Contracts often allow shorter procedures or easier termination during probation, but the employer must still pay contractual/statutory notice where due and comply with day-one rights. Discrimination, whistleblowing and certain automatic-unfair protections can apply regardless of ordinary unfair-dismissal service.
If probation is extended, ask whether the contract permits extension, why it is needed, what standards remain unmet and what the new review date is. An indefinite probation period with shifting expectations is difficult to evaluate fairly.
A PIP should be capable of being passed
A genuine performance improvement plan should tell the employee what must change, how progress will be measured, what support is available and when reviews occur. If the target moves during the process or examples are withheld until the final meeting, record that carefully.
Ask for intermediate feedback rather than waiting until the end. If the employer says performance is still deficient, request specific examples against each target so the employee has a real opportunity to respond and improve.
A performance standard needs a baseline
Ask what standard is required, where it comes from and how performance is measured. Compare it with job description, training, previous appraisals, colleague expectations and any recent change in workload or systems. A target invented after concerns arise is weaker evidence than a standard consistently used before the dispute.
Where quality and quantity pull in different directions, ask how the employer balances them. Raw volume metrics can mislead if they ignore complexity, approved non-productive duties or error rates.
What can you realistically ask for?
Match the requested outcome to the right involved. Some problems can be corrected internally; others have statutory pay, compensation or tribunal remedies.
- Clear and realistic performance plan
- Training/resources/support
- Reasonable adjustments
- Extension/review where justified
- Withdrawal or reduction of warning where evidence is flawed
- Appeal or dismissal remedies where legal claim succeeds
Evidence worth keeping
Preserve the original record where possible. A short, dated evidence set is usually more useful than an unstructured dump of documents.
Common employer responses - and what they do not necessarily prove
| Employer says | ConsumerWise view |
|---|---|
| “Probation means you have no rights.” | Wrong. Probation does not remove discrimination, whistleblowing, pay, notice and other protections. |
| “The manager’s opinion is enough evidence of poor performance.” | Management judgment matters, but specific examples and consistent standards are much stronger than unsupported labels. |
| “A PIP automatically proves we gave a fair chance.” | No. The quality, realism and good faith of the process matter. |
| “Health issues are personal and irrelevant to targets.” | Disability and sickness can require adjustments and change how capability should be managed. |
What to say next
Write in issue-remedy form: identify the event, state the rule or evidence that matters, ask the employer to explain its position, and request a concrete outcome. Avoid burying the key point inside a long narrative.
Important overlaps and edge cases
- Disability adjustments
- Sickness absence
- Disciplinary procedure
- Dismissal/unfair dismissal
- Discrimination
What to do
A practical next-step plan
- Write down the event or decision, the date, who made it and the practical impact.
- Identify the legal or contractual right that may apply instead of relying only on the word “unfair”.
- Collect the smallest evidence set that proves the key facts and the employer’s stated reason.
- Use the relevant internal request, grievance, appeal or complaint route and ask for a specific remedy.
- Check Acas and tribunal limitation separately. Do not let a slow internal process cause an external deadline to expire.
Escalation and time limits
Internal procedures can be important, but they do not normally stop an employment tribunal time limit. As at 11 September 2026, most claims whose limitation period starts before 1 October 2026 still use the existing three-month-minus-one-day framework. For most relevant time limits starting on or after 1 October 2026, the period increases to six months minus one day.
Acas early conciliation can affect calculation of the deadline if Acas is notified in time. Some claims use different limits, and interim relief in qualifying dismissal cases can require action within only 7 days. Always check the specific claim rather than applying a general period mechanically.
Official sources
Check the current official source material
- Acas: Performance management - official guidance
- Acas: Dismissals - official guidance
- Acas Code of Practice - official guidance
Employment law changes frequently. Check the live official source and the date of the workplace event before relying on a time limit, qualifying period or statutory rate.