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Senior Partner
Senior Partner, Solicitor
Category: UK Law
Satisfied Customers: 13239
Experience:  30 years experience in business law and related topics such as employment law
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Dear Sirs, I hope this email finds you well and that you

Resolved Question:

Dear Sirs,

I hope this email finds you well and that you are able to help.

My scenario is this. i have been with my current employer for 2 & 1/2 years am am now considering leaving the organisation. the reason for this choice consists of a number of elements which I am hoping to discuss with yourselves.

The first is this; when i originally joined the company the key selling point was that the organisation was to become an accredited trainer of the ISMM (institute of Sales & Marketing Management) and that during my time with the organisation i would be entitled to enrollment in this course with the view to acquire a industry recognised diploma.
During my career i have undertaken one module (which was never marked) and i believe only one senior manager has taken it any further although i still do not believe it was ever completed. throughout my time i have followed up on numerous occasions to ascertain the progression of this course i have been promised that things would pick up by a number of senior management but as yet nothing has materialised.

First question, what rights do i have as an employee to ensure that the promises made are actioned by the employer if my decision to join the organisation was predominently based on this? alternatively what obligation does the employer have to the employee to ensure it actions it commitments?

Second reason i am leaving is this; In March of this year i chose to move on to another organisation, following numerous interviews and subsequently an offer i chose to hand my resignation in. I was pulled aside and offered the opportunity by my current employer to discuss where the gaps lay to identify whether there was something that could be changed that would mean i would stay. following this i was given a pay rise and KPI's to work towards that would allow me to secure a promotion following 4 months probation period. within a week my personal targets changed to such a degree that meeting those kpi's would be an impossible task and i was effectively set up for failure.

I have recently sat down with my manager who in no short order advised that my team were failing because i was failing and i was given key performance indicators to work towards. these were then emailed to me following our meeting and my HR manager was included in the email. At this point i responded asking whether i was on "Performance Management" to which the reply was yes. Having put individuals on performance management projects before i was under the impression that there was a set guideline that needed to be followed.Namely that i be made aware of it in the meeting, that kpi's are mutually agreed upon, time frames provided and repercussions of not meeting them discussed. none of which i received. At this point i decided i would engage a number of recruiters i was familiar with to ascertain the current opportunities in the market, to which i had a very positive response and within the space of an afternoon i had several interviews lined up.

The following day i was pulled aside by the same manager discussed above and was told that i am in fact not on performance management and that the last hing he wanted to accomplish was to lose his most experienced manager. he had in fact incorrectly articulated what was taking place. He did however ask that we meet twice a week to review how i was performing against the KPI's he had provided. I left it at that thinking there may be scope for me to secure my job and progress my career and in the process canceled the interviews i had and effectively damaged my credibility with these other organisations and recruiters.

Over a number of weeks and following numerous follow up meeting to review my progress (at each one i was told how well i was doing) we sat down and discussed these again at which point the manager was inclined to add a number of new KPI's to the list. ( the majority of the KPI's both the original list and new ones) were never tangible/measurable. as an example i was to approach my team with in a positive/optimistic manner. this meant that my performance against these KPI's was very subjective depending on said managers perception. considering the manager has always treated me differently to others i felt as though there was no way for me to effectively demonstrate i was capable of doing the job. I confronted the manager about this and again asked whether i was being performance managed out of the organisation, i said that my concern was that even if i meet all of his targets i am unable to fundamentally change my personality and would therefore still not be looked at favourably for any future career progression as long as he remain my manager to which he implied agreement by saying "he would not want me to feel uncomfortable and that there would be no scope for progression so perhaps i should look at alternative career options. again i left it at that.

My question is; what rights do i have as an employee against this type of treatment/proces
Submitted: 4 years ago.
Category: UK Law
Expert:  Senior Partner replied 4 years ago.
Can you clarify - Are you saying that you resigned earlier this year and were persuaded to stay on with a possible promotion and now you are being told that you have no chance of ever being promoted? that sounds quite bizarre - has your manager changed ? Was it your current manager who persuaded you to stay?
Customer: replied 4 years ago.
In a round about way yes, sorry i'm trying my best to articulate this. Basically when i handed in my resignation i was persuaded to stay by my then manager and my MD. I still report to this manager for certain duties but in a dotted fashion, my direct manager has changed (this is the pne who placed me on performance management). as mentioned the relationship with this manager is strained mainly because he joined the company a few months after me and there was some perceived competition between us (i say perceived though the argument exists that my career is based on performance where as his has been on playing the political game) any way. i was in line for a promotion in 2008 and everything had more or less been agreed and would take place when i returned from holiday. During my absence this individual entered the running for this promotion. i was then told there were concerns over me and that i should reconsider running for this. i Did and did not go for the promotion and this individual was given it. A few months later i was given the promotion in another team. The individual in question was then promoted to operational manager at which point (march) i chose to hand in my resignation...

A few weeks after i was disuaded from leaving the operations manager became my manager and my kpi's and situation changed.

i hope this helps.

Please get in touch if you have any further questions

Kind Regards
Expert:  Senior Partner replied 4 years ago.
Thanks

It sounds as if this individual has something against you.

This is obviously a difficult situation. Dealing with your first point, if you were promised a training course when you joined and this was an inducement o you to join then you should get the course and if it is not provided there is a potential breach of contract. You could file a formal grievance. Indeed you could in theory sue for damages but that would obviously put you in an even more difficult position.

So far as the performance management and general treatment is concerned. If so called performance management was part of a disciplinary process then you are right it should be done through the appropriate meetings with prior notice etc . However it is a positive duty on a manager to try and mange his staff effectively including identifying areas of under performance and to take steps to correct them. If you have never been subject to disciplinary process for your performance then I think the employer could argue this is normal management.

Clearly your overall treatment by your manager is unacceptable to you and it is not really acceptable in effect to tell you to get another job at least in this way.

The difficulty for you is that your remedies are limited. If the conduct is so unacceptable as to amount to a complete breakdown of the employment relation ship you could leave and claim constructive dismissal but it not an easy claim to bring. The only real alternative is to file a formal grievance about your treatment. You should do that anyway because if you want to claim constructive dismissal you should show you have given the employer every opportunity to resolve your issues.
Customer: replied 4 years ago.
Hi,

Thanks for your prompt response, just a few questions to help me make the best possible decisions moving forward.

"Dealing with your first point, if you were promised a training course when you joined and this was an inducement o you to join then you should get the course and if it is not provided there is a potential breach of contract. You could file a formal grievance."

- How do i go about doing this? Besides the immediate working conditions being effected is there anything else i need to be aware of should i follow up the damages issue and what do i need to action this?

In terms of the performance management, I absolutly agree with your point and in a my questioning a dintinction was made between being performance managed out of the business and performance managed to identify the gaps, its become blatantly obvious int he ever shifting targets that it is the first camoflauged as the second as there is no way for me to meet the targets i have been positioned to fail, not to identify weaknesses and gain the necessary support.


If you could let me know your final thoughts on this that would be great.
Thank you.

Kind regards,

Clayton
Customer: replied 4 years ago.
Hi,

Thanks for your prompt response, just a few questions to help me make the best possible decisions moving forward.

"Dealing with your first point, if you were promised a training course when you joined and this was an inducement o you to join then you should get the course and if it is not provided there is a potential breach of contract. You could file a formal grievance."

- How do i go about doing this? Besides the immediate working conditions being effected is there anything else i need to be aware of should i follow up the damages issue and what do i need to action this?

In terms of the performance management, I absolutly agree with your point and in a my questioning a dintinction was made between being performance managed out of the business and performance managed to identify the gaps, its become blatantly obvious int he ever shifting targets that it is the first camoflauged as the second as there is no way for me to meet the targets i have been positioned to fail, not to identify weaknesses and gain the necessary support.


If you could let me know your final thoughts on this that would be great.
Thank you.

Kind regards,

Clayton
Expert:  Senior Partner replied 4 years ago.
Hi Clayton
If you wish to sue for breach of contract you can either bring a claim in an employment tribunal or in a county court I think in the case of a promise to pay for a course that has not materialised it is most probably the county court but I will have to check.

A grievance of course is simply a complaint in writing to the appropriate person usually in HR under your companies grievance procedure which should be in your terms and conditions of employment .

My overall view is that you would be best served by filing a general grievance about your treatment by your manager which will at least flush out whether he or she has got the support of the management or if in fact the company really finds your treatment unacceptable.

If you get nowhere then you can think about leaving and claiming constructive dismissal. I would detail in your grievance the issues about unreasonable targets and the assertions about your future.

One other point is there any question of your managers treatment being discriminatory on race or gender grounds for example . ie. is there some improper motive behind the way you are being treated?
Senior Partner, Solicitor
Category: UK Law
Satisfied Customers: 13239
Experience: 30 years experience in business law and related topics such as employment law
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