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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 48195
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am working years 4 months in an IT department of online

Customer Question

Hi, I am working for 2 years 4 months in an IT department of online discount shop. My Head of Department (HoD) started an informal capability process at start of June. I was told that he will send me objectives in the email and he mentioned in the meeting that two areas he is concerned about - quality of code and interaction with the team. Informal review process was supposed to be of 4 weeks. I didn't get any email about objectives and no feedback or training or support happened during informal process. I was supposed to be on Parental Leave of 4 weeks after 24th July. On last day before Parental leave started, I was told by head of department that I have failed informal review period and he is moving to a formal process - Performance Improvement Plan. When I asked him what are his observations, he couldn't come with any and said that he will discuss it after I am back from Parental Leave. When I insisted, he said he will email me. He mentioned that there is an improvement in interaction with the team. Later that day I got some bunch of points called 'Areas of concern'. They were all vaguely worded and many of the things mentioned like design, submission of code to QA didn't happen during the informal process. During the parental leave I sent HR that proper company prescribed process was not followed like - 4 week period was extended to 8 weeks without informing me and no objectives were set etc. HR then reset the process and said that it will start again after I am back from Parental Leave. Because of all this I went in depression and took 3 weeks of sick leaves plus used some annual leaves. I joined back this week after break of 2 months. I requested my HoD and HR to postpone the process by 2 months because of my break and stress but they insist the process must go on from coming Monday. Occupational Health Advisor is not helping either. From yesterday afternoon I am again stressed and on sick leave. I am not able to focus on my work because of anxiety and stress. And I am afraid I am being set up and will be fired soon.
I was working on some big project from February to July. Project was supposed to be delivered in May but it got delayed for reasons beyond my control. There was some of friction between me and Head of Department during the project. Me and another developer at same level worked on this project and I did 80% work on that project. I was getting all the blame from HoD for failures beyond my control. My manager left in mid May and since then I am reporting directly to HoD who is 5 levels up. Immediately after my manager left HoD started taking meetings with me and started harassing me. On June 2nd I sent him email requested Parental Leave and annual leaves. In email chain, he was not happy about my request and raised lot of questions. And on same day evening he sent a meeting invite for later that week when he told me that I am put on informal process. Decision to move from informal to formal also seems to be based on my showing temporary reluctance to new Team Lead for allowing him to observe me while I am coding. It seems his decisions are based on matters not related to performance and he is doing it for personal vendetta.
GP had given me a sick note from 1st Sept to 8th Sept and amended duties/slow introduction to work from 8th Sept to 22nd Sept. But I couldn't join from 9th Sept as Occupation Health advisor mentioned I can take rest break for 2 weeks. And I used my annual leaves from 23rd September to 2nd Oct. GP and Occupation Health advisor are not ready to give any recommendations to employer about capability process. Both saying you have to negotiate it with your employer.
I am not sure what could be the best course of action for me. I can't afford solicitor's fees but hoping from you advice just like solicitor. Can you please help.
Submitted: 2 years ago.
Category: UK Employment Law
Expert:  Ben Jones replied 2 years ago.

Hello what are you hoping to achieve in this situation please?

Customer: replied 2 years ago.
I want to keep my job. I am not in a state at the moment to change the job. But I have started believing that my HoD wants me out in any case. If I have to go I need some compensation for any losses I might make and good decent references from employer and HoD if future employer asks for.
Expert:  Ben Jones replied 2 years ago.

Hello, it is probably best to discuss your rights when an employer is trying to potentially dismiss you because of alleged poor performance, then you can see what is expected of them and what you can do if it appears a fair process has not been followed.

An employee's poor performance is a potentiality fair reason for dismissal under the Employment Rights Act 1996, as it would amount to lack of capability. This should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality" and must relate to the work that they were employed to do.

In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.

Generally, the reasonableness of such dismissals would be measured against the following criteria:

· Did the employer have reasonable belief in the employee's incompetence;

· Was the situation investigated and was the employee given the opportunity to voice their side of the story;

· Was the employee aware of what was required of them in terms of satisfactory performance;

· Were steps taken to minimise the risk of poor performance through training, supervision, etc;

· Was a proper appraisal conducted and was the problem identified in a timely manner;

· Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;

· Did the employer consider offering alternative employment.

The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged.

For the time being a dismissal is not necessarily on the cards, so I suggest you continue to deal with this internally. You have the formal grievance procedure open to you if you wanted to formally complain about the way you have been treated. You can appeal the outcome of the grievance if you are unhappy with it.

If this results in a dismissal, the first step is to appeal directly to the employer within the allocated time for an internal appeal. After that the only viable option is to consider a claim for unfair dismissal in an employment tribunal, subject to having at least 2 years' continuous service. There is a strict time limit of 3 months from the date of dismissal to issue such a claim.

An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.

I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you