Perfomance Improvement Plan 

A Performance Improvement Plan (PIP) is a structured system or tool used to progressively and consistently monitor the performance of employees who are below expectations to address their unsatisfactory performance. It is also used to protect employers against unfair dismissal claims. 

Plans for performance improvement are regularly suggested as a result of performance appraisals. As a result, if an employer thinks that, after a performance review process, there is a gap between an employee’s actual performance and the expected level of performance, it should document performance difficulties and proceed to place the employee on PIP. Employers who do not manage employee performance, particularly through appraisals, lack the moral authority to inform employees that they have underperformed. 

Before conducting any disciplinary proceedings related to performance issues, an employer must provide evidence such as performance appraisals, written warning letters, and performance improvement plans to substantiate allegations of poor performance. 

The establishment and use of PIPs are not provided for in any legislation. The time limit in which PIP should operate is not laid down.  

Courts in Kenya have underlined some conditions that must be met for PIPs to be valid and enforceable. These include: 

• Explain the unsatisfactory performance and what needs to be improved. 
• Give clear targets and specify the desired performance in terms of either quality or quantity. 
• Create an action plan that adheres to the SMART principles. PIP durations are either 90, 120, or 180 days and the period can be extended if the targets are not achieved. 
• Describe the tools at the employee’s disposal to help them achieve their goals, such as coaching or training. 
• Permit a periodic, objective review of performance, and inform the employee how their performance will be monitored. 
• Explain to the employee that further disciplinary action will be taken if the expected performance is not achieved. 

The following indicators could point to an unjust PIP: 

• If you have a good track performance  
• Unclear targets 
• Poor relationship with your supervisor  

Every meeting and communication that took place during the PIP should be documented by the employer. These documents are essential proof of whether the PIP process was successful or not. Employees should receive regular performance reviews from their employers, and the records should be kept and shared with them.

Employment and Labour Relations Court (ELRC) Rulings

A supervisor’s opinion made without the employee’s input cannot be considered a performance appraisal. As stated in Jane Wairimu Machira v. Mugo Waweru & Associates ELRC No.621 of 2012, if there may be a disagreement between the employee and supervisor over the outcome of the performance review, the disagreement must be documented to indicate that an appraisal took place. 

Performance is gauged based on acceptable quality and compliance with the employer’s operating procedures, sufficient employee effort, and ability to perform a job at the expected level as per the disposition in Kenya Petroleum Oil Workers Union vs. Kenya Petroleum Refineries Union, ELRC No. 68/2013  

As determined in Maina Mwangi vs. Thika Coffee Mills Ltd, ELRC No. 2177/2012, the employee must be made aware of the set performance targets after they have been established if he/she is to be held accountable and responsible for non-achievement. Although it may never be instantaneous, poor performance is a reason for dismissal, not insubordination. Poor performance only covers the output components, as opposed to insubordination, which also focuses on the employee’s behavior. Therefore, poor performance requires a different approach. 

According to the ruling in Kenya Petroleum Oil Workers Union vs. Kenya Petroleum Refineries Union, ELRC No. 68/2013, performance is evaluated based on acceptable quality, adherence to employer operating procedures, and the ability to perform a job at the expected level. 

Summary and Conclusion

The PIP implementation is guided by the following 4 phases: 

1. Identification of the problem or performance issues 
2. Development of the plan 
3. Conducting the plan 
4. Conclusion

If an employee and his supervisor disagree either on the conduct or outcome of the performance appraisal, a grievance presents itself and the employer must provide an objective forum for the resolution of the grievance according to their internal policies. It should be noted that if an employee meets the objectives of PIP, an employer is bound to close PIP and allow the employee to resume his/her normal duties. However, if the employee does not achieve the desired results after the PIP duration lapses, the employer can commence the disciplinary hearing process.