(Unfair) dismissal or redundancy?

[Eloise01]

Re: (Unfair) dismissal or redundancy?

I make no claims to know much about employment, but I have conducted a lot of performance reviews, although in another specialised sector. What perturbs me about the statement I have quoted is the fact target are SET and you incorporate them VERBATIM.

Any performance review I have ever conducted has involved the negotiation of targets in terms of both the actual target, and the wording of it. I am uncomfortable with targets being dictated to everyone as one universal target for the workforce.

I agree, but this is common sense, not common practice. Many employers do dictate targets without consultation, and employees must accept the target or leave. The setting of a target is a business decision and something the law may not interfere with or replace. They assumption of the law, rightly or wrongly, is that an employer would not act contrary to their business interests in setting a target nobody can achieve resulting in them having to dismiss their entire workforce! However, there are always shades of grey - assuming they follow a proper capability process and act consistently, then dismissing those who fail to achieve, say 80% of target may well be and probably would be fair. If you recall a similar discussion re: Eggbound, the crux of his argument was that he was the only person being disciplined for performance failings, and his position was undermined by the fact that he then admitted that he was one of "a few". That "few" made all the difference because the argument then moves to the basis upon which those few are chosen. If it is a random selection then it would probably be unfair. But if it is based on a consistent rationale, then all things being equal, it may in fact be fair.

[Eloise01]

Re: (Unfair) dismissal or redundancy?

I would advise caution in relation to the ACAS phone line. Since ACAS services were restructured in 2009, this "helpline" is little more than a calll centre staffed by unqualified people reading from a script.. The quality of the advice is patchy; sometimes downright incorrect; and the problem is that unless you actually know the answer for a fact (in which case, why ring them?) then you have no way of knowing whether the advice is of an use or not. I emphasise that this criticism is about the calll centre / helpline, not about the professional services provided by ACAS, which are provided by trained and experienced staff.

If you work for an employer who appears to not understand the difference between asking a question and refusing to do something, it may be a good idea to consider brushing off your CV and looking for another job, because the two things are quite different. I would advise, however, that you query the targets before putting them on your "scorecard", but that is a matter of tactics. Putting them into the scroecard without question is an agreement to them, which you are then questioning after the event. If you beleive that something cannot be done and have good reason to believe this, then the time to query it is before you agree the target.

I am sorry if the OP is unhappy about the fact that I cannot give her an unequivocable statement about whether she will be redundant or not at some future date if she fails to achieve her targets. I am still not going to do so. There ought to be redundancies if there is insufficient work for the number of employees to do. If the employer happens to agree that the failure to meet targets is a result of lack of work and not incompetance. If the employer does not point out that the OP and her colleagues have signed up to targets and why did they do so if they did not think that they could achieve them? In other words - the employer may chose to handle a possible failure to achieve targets that employees have agreed to achieve in different a number of different ways and I cannot predict which way the employer will choose. There is no "this is the way that the employer must act". The employer will decide how they are going to handle it and then the test of whether they have done so within the law will be a tribunal. But to be clear - if the employer chooses the capability route, a tribunal will not examine the targets to determine whether or not they are reasonable and fair. They have no power to replace the employers judgement as to the conduct of their business with their own. The only possible defence to such a dismissal would be evidence that the employee(s) disputed the deliverability of the targets and evidence that nobody achieved the targets or others did worse; combined with an argument that the dismissal process was thereby falwed in some way. Hence, my advice to collect evidence and demonstrate that the targets had been queried - and my warning that is others did achieve their targets then no amount of evidence would demonstrate flaws in the basis for the decision. The advice therefore remains to gather evidence - how that evidence might be useful, or even whether it is needed, depends on what the employer does - which might be nothing at all.

And with the greatest of respect to the OP - her experience is not an evidence of anything and will not be accepted by a tribunal. If she can evidence that experience by showing this to be a fact, then it may be relevant information for a tribunal to consider, but her opinion will otherwise be useless.

Re: (Unfair) dismissal or redundancy?

Targets are set centrally and we are expected to incorporate them verbatim into our KPI's/scorecard.

I make no claims to know much about employment, but I have conducted a lot of performance reviews, although in another specialised sector. What perturbs me about the statement I have quoted is the fact target are SET and you incorporate them VERBATIM.

Any performance review I have ever conducted has involved the negotiation of targets in terms of both the actual target, and the wording of it. I am uncomfortable with targets being dictated to everyone as one universal target for the workforce.

[sassy626]

Re: (Unfair) dismissal or redundancy?

I always recommend calling ACAS

They can address and advise on any issues you may have regarding your employment or employer, and it can be in complete confidence

their helplines are extremely 'helpful'

give them a try

I never thought of that. My husband did speak to them some time ago over an unlawful deductions issue and he got some useful advice. I will try them once I receive my "targets".

[sassy626]

Re: (Unfair) dismissal or redundancy?

I didn't say to refuse a target. That gets you dismissed. Querying the viability or achievability is not refusing.

Nor did I say that lack of work equates to dismissal and not redundancy. What I cannot tell you is that if five of ten colleagues, for example, meet targets, that you can then successfully argue that failure to meet a target is due to lack of work and not lack of capability at some unspecified point in the future. Nor that the employer will not treat failure to meet targets as capability. Or whether something that hasn't happened is fair or not in law. What I have told you is what you need to do to prepare potential case. Get concerns about unreasonable targets on record and collect any evidence that is relevant. Which is what you asked for.

I didn't say you did say refuse a target - that was just what I was pondering. But the reality is that querying the viability will be seen as a refusal. Targets are set centrally and we are expected to incorporate them verbatim into our KPI's/scorecard. So my only option appears to be a kind of side email to my manager stating that although I have put them in my scorecard as required I think they are unachievable/unreasonable for XYZ reasons.

Again I did not say that you said that lack of work = dismissal not redundancy. What I was saying was that without any kind of indication that lack of work generally should = redundancy not dismissal there is no point in my bothering to try to demonstrate that I am redundant and not incompetent! You indicated in your first post that you were not willing to discuss the point because it is a "what if". I was just trying to explain why I thought it was important despite being a "what if".

Finally, as I said, no-one in my region (or any region outside London) has met target for the last 6 months (which is why I think it is ridiculous to set me a target that no-one is meeting). Experience tells me it is not that case that my London colleagues are inherently more capable than the rest of us! Simply that they have different client base which is not always in line with ours in terms of work volume generated.

[stevokenevo]

Re: (Unfair) dismissal or redundancy?

I always recommend calling ACAS

They can address and advise on any issues you may have regarding your employment or employer, and it can be in complete confidence

their helplines are extremely 'helpful'

give them a try

[Eloise01]

Re: (Unfair) dismissal or redundancy?

I didn't say to refuse a target. That gets you dismissed. Querying the viability or achievability is not refusing.

Nor did I say that lack of work equates to dismissal and not redundancy. What I cannot tell you is that if five of ten colleagues, for example, meet targets, that you can then successfully argue that failure to meet a target is due to lack of work and not lack of capability at some unspecified point in the future. Nor that the employer will not treat failure to meet targets as capability. Or whether something that hasn't happened is fair or not in law. What I have told you is what you need to do to prepare potential case. Get concerns about unreasonable targets on record and collect any evidence that is relevant. Which is what you asked for.

[sassy626]

Re: (Unfair) dismissal or redundancy?

I always refuse to be drawn into "what ifs". Whether it might be fair dismissal, unfair dismissal or redundancy at some undefined point in the future is subject to millions of variables.

If the targets are unacheivable, then this needs to be put into the record - but this is only likely to be effective if you all say it. And if you are all failing to achieve it. A grievance, preferably a collective grievance, would be the most effective way of doing this. And keeping copies of any relevant evidence/ documentation. That's all you can do at this point.

I guess employment law must be unique then in that forward planning/attempting to avoid an issue is a pointless idea. I am in a unique position right now of being able to see what has been started whilst not having yet signed up to the (centrally issued) targets so simply thought I might have a possibility of being able to protect my position slightly better than those who signed up to the targets without objection 6 months ago. However if in principle, lack of work = grounds to fairly dismiss rather than make redundant then there is no point in me bothering. And I've never refused to agree to a target before as my employer previously has always been reasonable about the effect of things genuinely beyond our control (like the economy) so have no idea if I can even do that without that in itself being grounds to discipline me.

[Eloise01]

Re: (Unfair) dismissal or redundancy?

I always refuse to be drawn into "what ifs". Whether it might be fair dismissal, unfair dismissal or redundancy at some undefined point in the future is subject to millions of variables.

If the targets are unacheivable, then this needs to be put into the record - but this is only likely to be effective if you all say it. And if you are all failing to achieve it. A grievance, preferably a collective grievance, would be the most effective way of doing this. And keeping copies of any relevant evidence/ documentation. That's all you can do at this point.