The Employment Court has found that an employer’s performance improvement plan, which extended over seven months, resulted in harm to an employee and therefore an unjustified disadvantage.

The employer was trying to manage the employee’s behaviour, but knew of an underlying mental condition that the employee had which resulted in extreme anxiety. This was made worse by the process, without the employer seeking to obtain medical advice on the effects of the PIP on the employee.  The Court held that that was not what a fair and reasonable employer could do in the circumstances.

This became a health and safety issue as the employer failed to ensure a safe work place for its employee, as it did not keep them free from harm.

In addition the employer was also at fault because the manager who was advancing the disciplinary process had been closely involved in the performance improvement process, which had become increasingly fraught, and having that manager involved was also not a step of a fair and reasonable employer could have taken.

The damages that the employer will be liable to pay are yet to be determined in a further hearing.

Alan Knowsley

Employment Lawyer Wellington