Prepared by: Rebecca Meharchand
Performance management can be a tricky subject for employers to raise with their employees. However, just because these conversations may be uncomfortable for both parties does not mean they should not be had. For both employers and employees, it is important for employees to be given the opportunity to demonstrate their ability to perform their duties.
That being said, there are some circumstances where a Performance Improvement Plan (PIP) is not the appropriate avenue for an employer to take.
If, for example, you notice a previously high-performing employee has recently been a bit more absent from work (whether physically or mentally) or seems anxious or stressed in a way they weren’t before, it is first important to check in from a human rights perspective.
In these types of situations, an employee may actually need an accommodation, rather than a PIP. Perhaps they’re on new medication which has produced some side effects, or perhaps their spouse or child is sick and they require more time away from work. These are human rights concerns on the basis of disability and family status, and in these instances, a PIP would not be appropriate, and may actually be against the Human Rights Code.
In Ontario, employees have certain rights under the Human Rights Code, which prohibits discrimination on the basis of certain protected grounds, including race, gender, sexual orientation, disability, marital status, and family status, among others. The use of a PIP could raise concerns regarding potential discrimination or unfair treatment of employees, especially if it is applied in a discriminatory or biased manner.
If an employer places an employee on a PIP when they should be looking into accommodation measures, they could face the following human rights issues:
Discrimination: If the PIP is applied to an employee based on their membership in a protected class, such as their race or gender, this could constitute discrimination and a violation of their human rights. Employers must ensure that their PIPs are applied fairly and without discrimination.
Failure to Accommodate: If an employee has a disability that is impacting their performance, putting them on a PIP without first exploring accommodations or other ways to support their performance could be discriminatory. Employers have a duty to accommodate employees with disabilities up to the point of undue hardship.
Harassment: If the PIP is used as a form of harassment or retaliation against an employee who has raised concerns about discrimination or harassment, this could be a violation of their human rights. Employers must ensure that their PIPs are not used to punish employees who speak up about discrimination or harassment.
In summary, employers in Ontario must be able to discern when an employee needs a PIP and when an employee needs accommodation. Employers should have a private conversation with previously high-performing employees, to see whether any accommodations are required before implementing a PIP.
If an employer does find they need to use a PIP, they should ensure that their PIPs are applied fairly and without discrimination, and that they take into account any accommodations that may be required.
For more information on whether or not to implement a PIP in your workplace, please contact your Seabrook Workplace Law lawyer.
