Constructive Unfair Dismissal

[Makkun70]

As part of my yearly appraisal I have recently been told that I will be being placed on an agreed performance inprovement plan (PIP).

I have refuted the ranking (appraisal rankings range from 1-5, with 5 being the highest performance), which has been verbally confirmed as a 2. A 2 ranking means you are placed on a PIP.

I have argued that the 2 ranking is unfair against my performance, indeed in a team of 4 I delivered over 50% of the transactions of the team. I'm an internal recruiter and my role is basically to bring people into the bank.

My company is arguing that they recognise this as very good performance, but that there has been 'negative feedback' in terms of how I 'carry myself' and with 'stakeholder management'. All pretty much subjective and hard to measure.

In context I ranked a 4 in the previous year and 3's the year before.

In 2011 I did not have a mid-year review (part of the official process) as my manager forgot (even with prompting from myself on a number of ocassions).

So in effect they are selling this to me as a massive nosedive in performance from 4 to 2.

I am still refuting the ranking and therefore the need to go on to any kind of PIP and have asked for the ranking score to be officially given in writing with explaination of how the score was derived.

I have aslo asked for a draft copy of the PIP they want to put me on. They have taken over a week to get these to me, so can only assume they are putting all their 'official communications' through their policy & employment department.

I will seek legal advise on Wednesday next week and the lawyer has asked for all of the documents including the PIP.

My argument to date has been that a 2 ranking has come as a surpise and the negative feedback is all subjective and not at all measurable.

They concluded that they (my managers/line/superior) knew that I was ranking to a 2 in April last year, but hid the negative feedback from me as they did not want to effect my performance. They also forgot to do a mid-year review in June, which is part of the 'appraisal process' and is used to in their words 'to make sure employees are on track with their objectives set at the beginning of the year'. This did not take place and I'm arguing if they had negative feedback to address then they should have done this, every employee undertakes a mid-year review, mine as I mention was forgotten about and did not take place.

So in effect, the first time I have heard about the company having a perception of me underperforming has just come this week and the conclusion is they want to go straight to a PIP process.



As mentioned I am seeking legal advice asap - but would welcome any comments or advise on the above.

I wouldn't wish this sitiuation on anybody else - it's truly horrendous.

Many thanks for listening.

[bluebottle]

Re: Constructive Unfair Dismissal

Hello Makkun and welcome to Legal Beagles.

First and foremost, I have come across this dirty and spiteful way of treating people during my working life. However, at the end of the day, your employer has to prove whatever they say about you is true in every respect. Employers, despite what they lead their employees to believe, do not enjoy any special exemptions from compliance with the law. If they say you are under-performing, they have to show how and prove this.

Second, I would strongly advise you against claiming constructive dismissal. As I am sure your legal advisor will tell you, in a case of constructive dismissal, it is the EMPLOYEE who has to prove they have been constructively dismissed. In a case of unfair dismissal, it is the EMPLOYER who has to prove the employee has NOT been unfairly dismissed.

You are wise to seek legal advice and you might like to speak to the Arbitration Conciliation and Advisory Service (ACAS). They provide free and impartial advice on employment matters. I would certainly mention about the email as it appears your employers are trying to find any way they can to avoid paying redundancy compensation.

Bluebottle

[CleverClogs]

Re: Constructive Unfair Dismissal

My company is arguing that they recognise this as very good performance, but that there has been 'negative feedback' in terms of how I 'carry myself' and with 'stakeholder management'.

Can you tell me what a 'stakeholder' does, other than perhaps to carry the tools of a vampire slayer?

[teaboy2]

Re: Constructive Unfair Dismissal

If they failed to give you a performance review the previous year and then went on to to admit it by stating they knew your ranking was a 2 and chose to not tell you so it did not effect your performance doesn't make sense, as they have:

1 broken company policy on carrying out annual performace reviews
2 shown that they did not feel your ranking in the previous year where they choose not to carry out a perfromance review with you was fair or accurate - therefore showing they themselves doubt their own perfromance review system.

and 3 By choosing to not to carry out a performance review incase it effects your performance, also proves they believed your performance was overall good and deserved higher than the 2 that they say you would have got if they had carried one out.

I see no logic in their stance or their argument for not giving you a review last year.

[leclerc]

Re: Constructive Unfair Dismissal

Makkun, are you in a union? I am sure that you may be able to put in a grievance on this issue of bias on the basis that failure to carry out a mid year review means that realistically a 3 performance rating would be a preferable one.
I do have a few questions though:
Based on the factual targets that you have as opposed to the subjective ones they are suggesting, are you in level 3,4 or 5?
Are you aware of performance ratings amongst your colleagues being any better in spite of underperformance?
If you work for who I think you work for, do you have quarterly bonuses? I know when I worked for a Scottish banking group(RBS) that a performance rating of 2 which was more or less underperformance, meant that you were not allowed to get a quarterly performance bonus. In fact, I fought for 6 months after getting a written warning for a behavioural issue(I called my manager an idiot{but used a couple of different words to express that viewpoint}) and that manager withdrew the bonus on that basis. He was not allowed to do that and I spent 6 months dealing with an area manager to get that back.

If you do get quarterly bonuses then were any of these withdrawn or not paid as a result of your performance?

If that was not done then clearly whilst they may have subjectively have stated a 2 rating are they saying that your insistence on a half yearly review is part of that 2 rating?
If you had had a 1 rating, you would not be working there anywhere.

[Makkun70]

Re: Constructive Unfair Dismissal

Makkun, are you in a union? I am sure that you may be able to put in a grievance on this issue of bias on the basis that failure to carry out a mid year review means that realistically a 3 performance rating would be a preferable one.
I do have a few questions though:
Based on the factual targets that you have as opposed to the subjective ones they are suggesting, are you in level 3,4 or 5?
Are you aware of performance ratings amongst your colleagues being any better in spite of underperformance?
If you work for who I think you work for, do you have quarterly bonuses? I know when I worked for a Scottish banking group(RBS) that a performance rating of 2 which was more or less underperformance, meant that you were not allowed to get a quarterly performance bonus. In fact, I fought for 6 months after getting a written warning for a behavioural issue(I called my manager an idiot{but used a couple of different words to express that viewpoint}) and that manager withdrew the bonus on that basis. He was not allowed to do that and I spent 6 months dealing with an area manager to get that back.

If you do get quarterly bonuses then were any of these withdrawn or not paid as a result of your performance?

If that was not done then clearly whilst they may have subjectively have stated a 2 rating are they saying that your insistence on a half yearly review is part of that 2 rating?
If you had had a 1 rating, you would not be working there anywhere.

I believe based on my performance that I am doing exactly what is required of me, so tracking to a 3 ranking.

They are however saying that there was some bad feedback from one of the business managers I supported (known to be a tricky guy but that's why I look after him), they also claim I didn't work collaboratively.

They are claiming that other colleagues globally didn't have any of these issues so I'm being 'forced ranked' to a 2 as I would be lowest at my level.

There's no quarterly bonus, I get a base and a descretionary, the destrectionary would kick in at 3 or maybe 4 this year, if at all.

I work for McBank as you rightly point out.

I'm arguing against their comments, "there's been negative feedback and issues since April," with me stating, "if that's the case why am I the only person in the team who didn't do a mid-year review, surely there would have been issues to discuss.." etc..

[leclerc]

Re: Constructive Unfair Dismissal

I believe based on my performance that I am doing exactly what is required of me, so tracking to a 3 ranking.

They are however saying that there was some bad feedback from one of the business managers I supported (known to be a tricky guy but that's why I look after him), they also claim I didn't work collaboratively.

They are claiming that other colleagues globally didn't have any of these issues so I'm being 'forced ranked' to a 2 as I would be lowest at my level.

There's no quarterly bonus, I get a base and a descretionary, the destrectionary would kick in at 3 or maybe 4 this year, if at all.

I work for McBank as you rightly point out.

I'm arguing against their comments, "there's been negative feedback and issues since April," with me stating, "if that's the case why am I the only person in the team who didn't do a mid-year review, surely there would have been issues to discuss.." etc..

can I ask you to remove the last sentence please and I will PM you why you should?

[Makkun70]

Re: Constructive Unfair Dismissal

Appreciate that.

Thanks

[Shaquil]

Re: Constructive Unfair Dismissal

Hello Makkun and welcome to Legal Beagles.

First and foremost, I have come across this dirty and spiteful way of treating people during my working life. However, at the end of the day, your employer has to prove whatever they say about you is true in every respect. Employers, despite what they lead their employees to believe, do not enjoy any special exemptions from compliance with the law. If they say you are under-performing, they have to show how and prove this.

Second, I would strongly advise you against claiming constructive dismissal. As I am sure your legal advisor will tell you, in a case of constructive dismissal, it is the EMPLOYEE who has to prove they have been constructively dismissed. In a case of unfair dismissal, it is the EMPLOYER who has to prove the employee has NOT been unfairly dismissed.

You are wise to seek legal advice and you might like to speak to the Arbitration Conciliation and Advisory Service (ACAS). They provide free and impartial advice on employment matters. I would certainly mention about the email as it appears your employers are trying to find any way they can to avoid paying redundancy compensation.

Bluebottle

I have experienced something very similar recently, where I have been told that I am underperforming, i was placed on a perfromance plan for 4 weeks then this was extended for another 2 weeks (i was advised that the extra 2 weeks extension is for the personal problems that I am goind throug ) however after this they placed me on what they call a cotractual plan, if my perfomance does not improve then its dismissal.
I have some personal problems that I am going through and my line manager is fullyaware of this, however I dont see that I am recieveing any support where its needed to improve performance.... also the fact that I am doing what is required ... but I can see that there is dirty politics involved here... i have never worked for a bank...this is my first time, i am close to my probationary period ending and i have been told that by the end of the probationary period they willl either keep me on or dismiss me... they cans find any other excuse apart from " my performance to record complaints" well ... the way i see it, if they can play dirty like this then its not a company I want to stay with... I would like some advise though based onmy notice ...if I was to give my notice within the next week, how will that affect my probaitonary period, as my probatinary period ends onthe 2nd of Jan 13... does my notice end at the 2nd of Jan or will it take me over through the 30 days... as I want to get paid for me notice... even if i dont stick around to work with them.
your advice is very much appreciated.