Performance Issues

You may face the situation where your employment may be at risk of being terminated because of performance issues.

Performance issues can apply in two ways. Either, your health is preventing you from being able to undertake your job or your employer is alleging that you do not have the skills and ability to do your job.


Often individuals are faced with dismissal by reason of performance issues caused by their health when they are on long term sick leave. This often, in turn, raises issues of disability discrimination.

For health related performance dismissals to be the basis for your employment to be brought to an end, you often need to be off work for a long period of time. Alternatively, employers may fairly dismiss employees for short-term intermittent absences provided they follow a reasonable procedure giving adequate warning to the employee that their employment may be at risk.

In both long-term and short-term sickness cases an employer may require a medical report to be prepared either by your GP or an independent expert medical adviser appointed by your employer. The report will usually focus on the reason for sickness absence and the level of attendance that the medical expert believes you will achieve in future.

If faced with this situation, we will be able to advise you on your rights and options. That will often include how you can best communicate and correspond with your employer in a way that best protects your interests. If your medical condition amounts to a disability for the purposes of the Equality Act 2010 then your employer will be under a duty to make reasonable adjustments. For example, a common adjustment employers have to make for disabled staff is to accept a greater level of sickness absence than they would for a non-disabled person. Disability discrimination law is a complex area and we can provide you with sound advice to ensure your position is properly protected.


If you are faced with performance procedures (sometimes known as a performance improvement plan or PIP) owing to an alleged shortfall in your skill and/or ability, we are able to advise you on the process being followed and, in particular, whether there is sufficient grounds for such action to be taken and therefore if you may be able to challenge your employer’s actions.

Performance procedures are often quite lengthy and, like most employment procedures where dismissal may be the outcome, stressful.

Our employment solicitors will be able to review the allegations being made against you and understand whether there is sufficient justification for those to trigger a warning or, worse, the possible termination of your employment.

You should be given the opportunity to challenge the allegations and also given sufficient time to improve your performance to meet reasonable targets. Again, ensuring you are being treated fairly and properly will all form part of our advice.

It may also be that there are some underlying issues that are causing any alleged poor performance that may link to some form of discrimination which we can consider and advise you further on. If there are, then it may be appropriate for you to raise a grievance, and again we can advise on you on the most effective way you might do that to.

More from the Downs Blog

Millions of UK workers to receive increase in pay from April 2021

In April of each year, the Government increases statutory payments that are payable to workers and employees. 

Working from home - where do you stand?

Under new government guidance, you should work from home if you can effectively do so. However, some employers may ask their employees to return to work whilst restrictions are in place - particularly if it is not reasonable to carry out that work at home. For those who are concerned about health problems, or juggling childcare, where do you stand in the eyes of the law?

What the new lockdown means for businesses, employees and workers

The third lockdown in England legally came into force on 6 January 2021. How long it will last is uncertain. At least until mid-February and possibly until late March. Vaccination provides a route out of the pandemic, but businesses need to survive this final and possibly longest of the lockdowns.

We are open

During these uncertain times, it is good to know you can count on us.

Even after the recent Government announcement of another national lockdown we remain open for business and are here to help you.

Coronavirus Job Retention Scheme Extended Until March 2021

On Thursday 5 November 2020, the Chancellor announced that the furlough scheme is to be extended until the end of March 2021. During this period you will be able to claim up to 80% of an Employees salary up to a cap of £2500.


Coronavirus Update - CJRS Extended

The Chancellor announced over the weekend that the Coronavirus Job Retention Scheme (CJRS) that was due to end on 31st October will be extended until 2nd December.  The level of support available under the extended scheme will mirror that of what was available under the CJRS in August, with the Government paying 80% of wages up to a cap of £2,500.

Chancellor announces changes to the Job Support Scheme

The Chancellor announced on Thursday 22 October that the Government contribution to employers’ wage costs under the Job Support Scheme (JSS) will be increased. Employers will be expected to pay 5% of the cost of unworked hours instead of the 33% originally announced.

Coronavirus Update - CJRS Bonus - Are you eligible?

Back in the summer the Chancellor announced that employers could receive a one-off payment of £1,000 for every employee who had previously been furloughed under the Coronavirus Job Retention Scheme  provided they remained continuously employed to the end of January 2021.  Businesses will be able to claim the Job Retention Bonus from 15 February 2021 and the Government has stated that further guidance will be provided by the end of January 2021.

Coronavirus Update - Jobs Support Scheme announced

With new government guidance on Covid coming into force today and the current furlough scheme coming to an end next month, as expected, the Chancellor has today announced a new scheme to help businesses.  

Latest government Covid measures re-introduce work from home message

As Covid-19 cases continue to climb, the UK faces ever tougher restrictions. But, with the furlough scheme winding down, what rights do employers and employees have when returning to work?


Barclays backtracks in privacy row over worker surveillance project

Barclays Bank has withdrawn a system that monitored employees’ computers, tracking individual working patterns and how much time each day was spent on breaks. Details of the pilot project came to light after a Barclays whistle blower reported it to a newspaper.

New contract terms affecting all new employees and workers to come into force on April 6 2020

From 6 April 2020 there will be changes to the minimum written terms that must be provided to employees AND the timing of when these terms must be provided to them. These terms are known as Section 1 statements, referring to Section 1 of the Employment Rights Act 1996 (ERA).

The Parental Bereavement Leave and Pay Regulations set to come into force on 6 April 2020

Downs Solicitors is pleased to play a small part in helping to raise awareness of a new and important piece of employment law that is coming into force in April 2020. The Parental Bereavement Leave and Pay Regulations will be known as Jack’s Law. This is in memory of Jack Herd who died in 2010 and whose mother, Lucy, has campaigned tirelessly ever since for mandatory leave for grieving parents.

What could work look like in 2020?

One of the big focuses in recent years has been on flexible working and how it has changed the concept of a “normal” working day. From challenging the norms of 9-5 working to commuting time counting as working time, there’s no doubt that the new decade could bring a new shape of working – but what does that mean for business leaders and their HR teams?

How might the decision to make ethical veganism a philosophical belief affect employers?

Jordi Casamitjana was dismissed in 2018 by The League Against Cruel sports for gross misconduct. Mr Casamitjana, an ethical vegan, claims that his dismissal came after telling colleagues that their employer’s pension fund was being invested in companies involved in animal testing. His solicitors claimed that the decision to dismiss was made because of his beliefs around ethical veganism.

Workers’ Rights – What the main parties are saying in their election manifestos

With the General Election looming on 12th December what are the main parties saying in their election manifesto's on workers' rights.  David Seals, Head of Employment, takes a look at the key messages.

Workplace health and well-being – It’s time to talk the menopause. A guide for employers


Improving the conversation about the menopause at work is important for both workers and employers. For the worker experiencing symptoms, the onset of the menopause can be a challenging time and one that is a sensitive and personal matter. For an employer, menopause is a health and well-being concern for their workers and one that needs managing sensitively.

What should we take away from the sudden departure of Steve Easterbook from McDonalds

The departure of McDonald’s CEO Steve Easterbrook at the weekend for having a consensual relationship with another employee created headlines for numerous reasons. Not least because of the $675,000 severance payment, but because he was the company’s Chief Executive and don’t things like that get conveniently swept under the carpet? No longer it seems.

Time to call for further workplace flexibility

Whilst many see flexible working as an opportunity to juggle a work life balance more successfully, a lot of work needs to be done around overall wellbeing for the employee – and ways in which the employer can help facilitate that.

Self-employed? You might want to think about how you will fund retirement

According to recent news, the average self-employed worker faces working until they are 79 to secure a big enough pension pot to support them in later life.

Another GDPR data breach hits the headlines

No sooner have we published a blog about British Airways’ largest GDPR fine on record, we find another story in the news.

BA Faces "Largest" GDPR Breach Fine

British Airways (BA) looks set to face the largest GDPR penalty by the Information Commissioner’s Office (ICO) of £183m for last year’s data breach that put 500,000 customers’ details at risk.

Stress in the workplace

According to the Health and Safety Executive (HSE), stress, depression and anxiety were the main factors for time off work in 2017/18, equating to 15.4 million working days lost.

3 Situations that require a Non-Disclosure Agreement

In all the excitement of a new partnership or business venture, sometimes we forget the serious side too. Fact is, without a non-disclosure agreement, or NDA as it is more commonly known, you risk exposing some of the valuable, and saleable, secrets of your success

3 Ways employers can take better care of the older workforce

People are living longer and therefore, they are working longer. According to the latest data from the ONS, there has been a rise in the number of over-50s in the workplace due to changes in the state pension age and shortfalls in pension payments.

Thinking of marrying after retirement? Read this first

According to recent figures, men are more likely to get married after hitting the age of 80 than they were under the age of 20. As more of us consider marrying later in life, you might just want to make sure you check a few things before you do, including the security of children and inheritance rights.

April 2019 Employment Law changes

Each April, the Government may amend employment regulations and set new deadlines for Companies to meet. The following are deadlines and updates which Managers and HR professionals should be aware of:

Spring Statement 2019 – At a Glance

The Chancellor has just delivered his Spring Statement for 2019 and despite lasting just under half an hour there were certainly a few surprises in store.

Christmas Parties: Don't be tempted to treat yourself to a sick day

Apparently, around 9 out of every 10 businesses have had an employment related issue as a result of Christmas party antics. One of the most commonplace issues is the hangover and staff calling in sick the next day after drinking too much at the Christmas party the night before.

How the Morrisons Data Breach case should put employers on their guard

GDPR seems to be the word of the year, but as many businesses still try to get to grips with it, the Court of Appeal have issued details surrounding a case of data protection. Is an employer responsible if an employee deliberately breaches a data protection law?

The email train: Does the commute count as working hours?

It seems the debate about “working hours” rages on. We recently wrote a blog about how working hours have changed and that people are moving towards much more flexible models.

Working 9-5: Not the way to make a living

Despite Dolly Parton's smash hit, it seems that just 6% of working people are sticking to the traditional 9-5 shift pattern, according to a recent survey by YouGov.

Show More

Read articles from Downslaw

Employers glimpse the future of EU skilled migration

The Brexit White Paper of 12 July 2018 suggests what the future of skilled EU migrants in the UK might look like, but the wording is vague. In this analysis for Thomson Reuters, Downs Head of Immigration Samar Shams tries to decode the government’s plans for skilled migration from the EU.

Dispelling the myth: Can employees go home early if office temperatures are too high?

As the temperatures set to reach record levels in the UK over the next week or so, there’s no doubt that many of us will be enjoying the great outdoors. But, what about those long office hours in stuffy, windowless buildings? Are employees entitled to go home if it is too hot? Do they have a “right” to air conditioning, for example?

Calling all employers with over 250 staff – have you published your Gender Pay Gap?

Organisations that have not yet published their gender pay gap information by the deadline next week could face unlimited fines.

£17,000 Cost Order against Employer

Author: Matthew Kilgannon

The Employment Tribunal (ET) is not known for making cost orders, in fact they are quite rare.

Unlawful Fees Help Employee Secure An Extension of Time

Author: Matthew Kilgannon


It appears that, in the last few weeks the Southampton Employment Tribunal has agreed to grant a Claimant, an extension of time to bring her claims.

Employees and Breastfeeding

Author: Nicola O'Dwyer

In a recent case, an employment tribunal considered whether crew members employed by EasyJet who were still breastfeeding when they returned from maternity leave had suffered indirect sex discrimination as a result of the airline’s failure to allow them to have bespoke roster arrangements.

Employment Status - The Uber Case

Author: Keith Potter

The employment tribunal’s decision in the case relating to the Uber taxi drivers was given in late October 2016 (Aslam and others v Uber BV and others). The drivers claimed that they were “workers” under employment legislation. If true, this meant that they were entitled (a) to the national minimum wage for hours worked, (b) to paid annual leave and (c) to protection against unlawful deductions from wages.

The Christmas Party - An Employer's Liability

Author: Matthew Kilgannon


Christmas parties can be a hot bed issues for business owners and HR. With Christmas parties in full swing, the High Court has recently delivered a decision that provides a timely reminder of the extent of your liability at such events.

Brexit Impact on Employment Law

Author: Emily Kidd

As we begin the journey to move forward from the vote to leave the EU, we consider the implications for employment law of Brexit.

Employer's disciplinary investigation was not an invasion of privacy

Author: Daniella Magennis

In the case of Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal considered whether it was a breach of Article 8 of the European Convention on Human Rights (ECHR) for employers to use personal material stored on an employee’s mobile phone in disciplinary investigations against that same employee where such content has an effect on work-related matters.

How To Restrict The Activities of Former Employees

Author: Matthew Kilgannon

We often advise clients regarding the enforceability, or otherwise, of clauses seeking to limit the activities of former employees. Most people are of the view that such clauses cannot be enforced, but, if properly drafted; such post-termination restrictions can be enforceable.

Budget Update and Other Employment Law Changes 2016

Author: Emily Kidd

As we digest the effect of today’s budget on our lives, I set out below a summary of the implications for employers.

How Effective Are Your Contracts of Employment?

At Downs, we regularly review and draft Service Agreements for Directors and contracts of employment (whether for full-time staff, part-time staff, fixed term appointments, home workers, zero hours etc). Doing so enables us to highlight some important areas for you to consider.

Employers Liable for Staff Who Drive at Work

Co-Authors: Matthew Kilgannon and Daniella Magennis


Many employers are oblivious to a very important legal responsibility; protecting the health and safety of employees who drive at work.

Election 2015: What's In Store for Employment Law?

Author: David Seals

With less than a week until polling day, we consider what the main political parties have planned for employment law should they be elected.

Existing Family-Friendly Employment Rights

Maternity Leave – pregnant employees are entitled to 52 weeks maternity leave and, subject to eligibility conditions, 39 weeks statutory maternity pay (“SMP”). SMP is paid at the following rates: 

Landmark holiday pay case increases costs for employers

Author: Matthew Kilgannon


As has been highlighted in the press, the Employment Appeal Tribunal (“EAT”) has this week delivered a decision in the cases of Bear Scotland Ltd v Fulton (and other co-joined appeals) that could have far reaching implications for employers.

Employment Law - It's a funny old game!

Author: David Seals

With the World Cup about to kick off in Brazil these are exciting times for football fans. Expectations for the England team doing well are (thankfully) not high but, based on past experience, expecting a few World Cup-related employment issues might be something you should plan for.

Settling Employment Disputes

Author: Matthew Kilgannon

Employment disputes are inevitable and will often result in the employer seeking to terminate the employment relationship. As an employment lawyer, I advise both employers and employees on their duties and rights in settling employment disputes. For most people, the best way of resolving such disputes is through the use of a Settlement Agreement; an alternative solution that avoids long drawn out litigation and an Employment Tribunal.

Why You Should Review Contracts of Employment

Author: David Seals

Employees’ contracts of employment are important legal documents which should be periodically reviewed and kept up to date. There are various reasons why you might want to update and change contracts of employment.

False Self Employment

Author: Nicola O'Dwyer

HMRC has recently issued a consultation paper on false self-employment, due to increasing evidence that Intermediary Companies and Employment Businesses are being used to present individuals as self employed to avoid paying national insurance and tax. They also avoid the costs and risks associated with having employees.

Shareholder Employees

Employee Shareholder status came into force on 1st September 2013. The Growth and Infrastructure Act 2013 introduced a new section into the Employment Rights Act 1996 which provides employers the opportunity to provide shares to an employee (the Employee Shareholder), in return for the employee giving up some of their employment rights.

Employment Law Reforms

There are three major changes to employment law which come into effect on 29 July 2013:

Who are “affected employees” for TUPE consultation purposes?

In I Lab Facilities –v- Metcalfe & others, the Employment Appeal Tribunal (EAT) considered who could be “affected employees” as defined in TUPE for the purposes of a complaint for failure under the information and consultation provisions.

Promoting Employees - How Restrictive are Restrictive Covenants?

Restrictive covenants that limit what an employee can do after leaving an employer are extremely difficult to get right, especially non-compete clauses, where the employee is limited in competing with the business for a fixed period after termination.

Recent Changes in Employment Law

Unfair Dismissal

On 6th April 2012, the qualifying period for employees to bring a claim for unfair dismissal in the Employment Tribunal increased from one to two years. This rule is only applicable to employees that commence employment on or after the 6th April 2012. Anyone employed before this date will only have to accrue one year’s service before bringing a claim for unfair dismissal.

Redundancy - EAT Decision Favours Employers

In Samsung Electronics (UK) Limited –v- Monte-D’Cruz, the Employment Appeal Tribunal (EAT) considered, amongst other things, whether following a restructure of employment roles an employer was compelled to offer a vacant post to an otherwise redundant employee despite him performing poorly at interview for the post.

Employees protected by TUPE in administration cases

Key2Law (Surrey) Ltd v De'Antiquis [2011] EWCA Civ 1567

Good news for employers - new rules regarding unfair dismissal

The Government has issued draft legislation on it’s proposal to increase the qualifying period to claim unfair dismissal from one year to two. The Order is succinctly known as The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, and can be viewed here

Show More

Our Team

Meet all of the team at Downslaw


15A High Street
KT11 3DH

T: 01932 589599
F: 01932 505087

DX: 46102 COBHAM


156 High Street

T: 01306 880110
F: 01306 471230



The Tanners
75 Meadrow

T: 01483 861848
F: 01483 431965