(Unfair) dismissal or redundancy?

[sassy626]

Hi - this has not happened yet but I'm a worrier and can see the writing on the wall...

My job is as a client advisor and I have targets which among other things includes a chargeable work target ie that a 75% of my time is spent doing client advisory work (the remaining 25% is admin/training etc). Another target is that a certain percentage of my advisory work (say 75%) is actually billed to a client (lawyers will any any event know what I am talking about I'm sure and the conflicts that this can sometimes bring and the fact that one target is sometimes met at the expense of the other).

Anyway, I've just returned to work after a period of maternity leave. I work in a regional office, main office is in London. In the regional offices, including mine, almost no-one has been meeting their chargeable work targets. In my specific region no-one is meeting their chargeable work targets this year (by a significant margin), a situation which of course is simply made worse by my return from leave.

My employer has recently sent letters out to those who are not meeting their targets stating their disappointment, advising what should be done to improve matters and stating that this will affect the year end performance review meaning that people will be regarded as under-performing. Most of what they advise should be done will not actually result in any uplift on most people's chargeability because the real problem is that there is simply not enough work available at present. One of our bosses even made a media statement recently about the fact that there is 30% less work around this year compared to last year and yet our chargeable hours targets have increased by 10% compared to last year.

I am very concerned that my employer is seeking to turn what I consider to be a redundancy situation into a performance capability situation and force people out of their jobs. A year end grading of under-performing is bad enough in itself but under our procedures automatically leads to capability procedures ultimately resulting in dismissal.

How do I manage this effectively from the outset and what, if anything, can I do if the worse happens? Would such a dismissal be fair or could my employer be required to apply their normal redundancy payments/procedures?

Thanks for any advice - it was hard enough coming back and I now feel quite ill with stress.

[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.

[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 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.

[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

[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.

[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".

[labman]

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.

[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.

[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.

[sassy626]

Re: (Unfair) dismissal or redundancy?

OK - I hope this quote thing works and I have not made an impossible to follow mess of this...

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.

Your point is a very relevant one - their approach to scorecard/KPI setting is not a collaborative one and does not encourage buy in. At the moment I have very good reason to query the targets (no-one is meeting them and I will further dilute the available work per person) but my firm's response is likely to be a little...bullying. Furthermore, I understand that last year where central KPI's were departed from in individual scorecards my employer refused to honour the departure when it came to appraisal time and people's grading was reduced as a consequence of not meeting the central targets (even having met the negotiated targets). My employer has acknowledged that its communication "could have been better" around this area. I'm very disappointed in them (not that this affected me unduly) but as a matter of trust and integrity. However, while I'd love to brush off my CV there is a small matter of me having just returned from maternity leave and being required to repay my discretionary maternity pay if I leave within the next 9 months. Not an option voluntarily.

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.

The OP is here! And I have no issue whatsoever with equivocable statements (my clients require them all the time so perhaps I am just more used to dealing with caveats, "what if" scenarios and ensuring that they double check advice accoriding to the exact facts before they act upon it) but as I said I thought it useful to know whether in principle this COULD be argued to be a redundancy situation and not merely a capability situation or whether my employer is quite within their rights to set an unrealistic "work done" target and then dismiss for failing to achieve it. My department as a whole (including London) is currently over 10% below budget on a "work done" basis.

Nevertheless, however reluctantly you have done it, you have provided some helpful pointers and clarification to my queries to thank you for that.

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.

I love how "with the greatest of respect is usually follwed by something entirely disrespectful. Although this comment (regardig my London colleagues) was made tongue in cheek, my experience is accepted by my firm on feedback forms as evidence of individual's performance which is then taken into account in setting their grading (although not so much as it used to be since targets are now king it seems).

Interesting about ACAS. I do recall at one point when my husband spoke to them saying thank you, hanging up and calling back to speak to someone else who he (I) had more confidence in. I wasn't telling him to cherry-pick advice exactly but I had read enough to have a feeling that what the first person was saying was not quite right. The mere fact that he had spoken to ACAS shook things up a bit though although it would not with my employer I don't think.

Thank you.

[sassy626]

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.

We're all uncomfortable with it. As a man management approach it is certainly not ideal. Previously it has always been accepted that there is regional differences both in terms of work availability and what our clients are prepared to pay for the advice we give them. So a sensible approach could be taken - say london target is £600k of revenues and our charge-in is 75% of theirs then we would set our revenue target at £450k and that would be accepted as reasonable. Not any more it seems. My view (not that this counts for anything) is that we no longer have sufficient critical mass to be effective in the regions and all work should be centralised in London (it could be) but I would tend to argue that this means that we are redundant. Well I would wouldn't I? :-)

[Eloise01]

Re: (Unfair) dismissal or redundancy?

The simple fact is that I could convincingly argue the justified use of anything from redundancy to capability and back again. The point is not what anyone else thinks should happen - it is what the employer actually does. And that is unquantifiable - it may be nothing at all. So collecting evidence and keeping records of raising issues is the only way to afford yourself any measure of protection in whatever circumstances arise. Which was what I said from the start. There are too many variables to accurately predict what you employer will do. And since you did not mention the fact that you received contractual maternity pay or that you would have to pay it back if you left, then I could not really be expected to take that small matter into account in my advice to you. "Returning from maternity leave" does not imply any of the other things - many people have no contractual terms for enhanced rights or pay, and as I told you from the start, I do not assume what I do not know or have not been told.

[sassy626]

Re: (Unfair) dismissal or redundancy?

Don't you find usually that a conversation ensues in which additional information comes to light or do you always expect to have every salient fact included in a single paragraph (from a person with no knowledge of employment law and therefore what the salient facts may be) with a response in similar vein? I was just highlighting why your (otherwise attractive) option was not currently one I am able to pursue.

Ridiculous really - that a firm which I think would like to get rid of me (not as a personal thing and among others) has a clause in my contract which makes it impossible for me just to leave!

Thanks again. Have a great weekend - relax and drink some wine.

[sassy626]

Re: (Unfair) dismissal or redundancy?

Only if that's your thing of course (disclaimer)