(Unfair) dismissal or redundancy?

Re: (Unfair) dismissal or redundancy?

Can I be an honorary member as well, as I've been banned from two sites, each time more than once?

[Eloise01]

Re: (Unfair) dismissal or redundancy?

By all means. Membership is honorary and we'd be honoured to have you

My thanks - it's years since I have had time to join anything fun! Hope this signature thing works!

[Eloise01]

Re: (Unfair) dismissal or redundancy?

I never shoot the messenger - most of my job is being the messenger!

I know the position on this. See - your crystal ball does work! Yes, we have so called good leaver and bad leaver provisions and redundancy is good leaver (as is retirement - useful to many maternity returners, I'm sure) so there is no clawback. Dismissal is bad leaver (of course). Just to add to the general cheer, I have cautiously maintained income protection insurance for a few years now and this of course will not apply if I am dismissed. But you perhaps see why I am quite so concerned about the "what if" and what to do what I can in advance to protect my position.

Waiver - my employer? If we get to that stage and it's relevant I'll start to raise it but if we get to my firm's year end without the worst happening then I should get through (would I be entitled to notice) to the nine months.

By the way, you mentioned Eggbound in an earlier post. I thought it was caselaw so I looked it up. Your reply to him on 13 January included "Advice after the fact is never as good as advice before it". A motto I live by. I'm off to find that one again and thank you for that post :-)

Ah, but that bit didn't take a crystal ball, just some information that I wasn't in posession of earlier! And I really do understand your concerns, I always have. It is just that other than the obvious "collect evidence", employment law is so perverse in its operation, even before you throw employers into the equation, that predictions are really hard to do, and past your employer could choose to make you redundant or they could begin capability proceedings, a bit hard tp say. They could also start looking for people posting on Facebook or other social media (fast becoming one of the fastest ways to get dismissed), knick the office stationary, or ring their husbands on the works telephone (or on their own phone in works time)! That's the problem with employers - they often ignore the obvious and go for the devious. I recall the infamous case, not one I was directly connected with, where a very large employer (a Council) sacked a Director for fraud on his mileage claim. The amount of the "fraudulent claim" - I believe it was £1.12. Or some such ridiculous sum - I am not out by more than 25p either way. Even more worrying - he lost his tribunal claim. Now I am pretty sure that the Council wanted him gone and were looking for a route to achieve it. But not even my crystal ball would have come up with that one!

So if your employer is looking to cut costs / employees, there is no "expected" route - and if your employers do what I think they do, they may be amongst the most likely to neither make people redundant or try capability processes (which take a long time actually). They are much more likley to do the unexpected.

PS. Edit - yes, I agree that advice before the fact is better than advice after the fact - but in this case it was advice before you (or he!) do something that isn't what you thought it was! If he had told anyone what he was planning and why, he'd have been told that it wouldn't produce the expected result. But he didn't, and it didn't.

Re: (Unfair) dismissal or redundancy?

on a different matter - I note that you and Flaming Parrot are both members of the "I got banned" Club. I find that although I was not so notified, and the site administrators seem remarkably coy in not actually labelling my posts as such (which they are supposed to do) I have been banned from a site also. May I enquire how I join? I'm not naturally a "joiner", but I feel that this deserves recognition for the sheer effort I made!!!

By all means. Membership is honorary and we'd be honoured to have you

Re: (Unfair) dismissal or redundancy?

I've never heard of Prospect. Assume from Eloise's response that it is a union? I'm quite bewildered by unions I'll be honest, never heard of anyone operating in my er... industry being in one. It's just not done - not even sure if it is possible or appropriate.

It's a union for professionals in white collar jobs. The moral support alone is worth the £14 monthly subs. Email support on employment related legal issues and a designated rep. You can be the only member from your company who joins, no matter. I happen to be the only member where I am.

Just a thought, so you don't feel quite so isolated.

[sassy626]

Re: (Unfair) dismissal or redundancy?

I've never heard of Prospect. Assume from Eloise's response that it is a union? I'm quite bewildered by unions I'll be honest, never heard of anyone operating in my er... industry being in one. It's just not done - not even sure if it is possible or appropriate.

I do agree with you about my employer though Debt Star although I agree that such speculation is a bit pointless.

Funnily enough, I was going to ask "fair to whom" in response to one of Eloise's previous posts.

[sassy626]

Re: (Unfair) dismissal or redundancy?

In light of your delight in crystal ball gazing - which generally never gets very far - but you have checked the clawback term for what happens if you are dismissed and /or made redundant? Generally such clauses do not apply in the event of redundancy (although sometimes they do, and that is actually lawful), but they often do apply if the person is dismissed for any other reason. And don't shoot the messenger if that's what it says!

Alternatively, and by way of being only a suggestion, but some employers will waive the clawback (especially towards the end of the period) if the alternative may be to make redudancies that will cost them more money. But that's not law, that's just a possible negotiating point.

I never shoot the messenger - most of my job is being the messenger!

I know the position on this. See - your crystal ball does work! Yes, we have so called good leaver and bad leaver provisions and redundancy is good leaver (as is retirement - useful to many maternity returners, I'm sure) so there is no clawback. Dismissal is bad leaver (of course). Just to add to the general cheer, I have cautiously maintained income protection insurance for a few years now and this of course will not apply if I am dismissed. But you perhaps see why I am quite so concerned about the "what if" and what to do what I can in advance to protect my position.

Waiver - my employer? If we get to that stage and it's relevant I'll start to raise it but if we get to my firm's year end without the worst happening then I should get through (would I be entitled to notice) to the nine months.

By the way, you mentioned Eggbound in an earlier post. I thought it was caselaw so I looked it up. Your reply to him on 13 January included "Advice after the fact is never as good as advice before it". A motto I live by. I'm off to find that one again and thank you for that post :-)

[Eloise01]

Re: (Unfair) dismissal or redundancy?

Well of course the employer would want to argue its due to incompetence and not lack of work because they have to pay out money on a redundancy. THAT the employer will do anything to avoid.

To the OP: have you considered joining Prospect? It's too late to get cover for any existing issues but membership will cover you for future problems of this kind. Even if its with the existing employer provided you ride this rough patch out.

They may. It's a mistake to ascribe motivations to employers though - they do the damnedest things for the damnedest reasons at times. I don't know what kind of law the OP deals with, but in a sense she is correct - it does operate "uniquely" and sometimes in the damnedest ways. Do you know what "fair" means; "objective"; "reasonable"? Because employment law is littered with words like this, and it often means what it means, depending on the exact circumstances in which it means it. How long is a piece of string can be easier to answer than what would a tribunal decide - and if you don't even know what the employer is going to do in the first place....

I do agree that if the OP isn't in a union, joining one is a good idea (it's always a good idea!) but I think that joining the best one for their own circumstances is best - there may be a good union in the workplace, or the local organisation of a particular union may be stronger in one place than another, or industry specific knowledge in a union may be important. One that is recommended by a stranger on a webiste may be great for them or in their area, but not necessarily the right choice for them.

But on a different matter - I note that you and Flaming Parrot are both members of the "I got banned" Club. I find that although I was not so notified, and the site administrators seem remarkably coy in not actually labelling my posts as such (which they are supposed to do) I have been banned from a site also. May I enquire how I join? I'm not naturally a "joiner", but I feel that this deserves recognition for the sheer effort I made!!!

Re: (Unfair) dismissal or redundancy?

If the employer happens to agree that the failure to meet targets is a result of lack of work and not incompetance.

Well of course the employer would want to argue its due to incompetence and not lack of work because they have to pay out money on a redundancy. THAT the employer will do anything to avoid.

To the OP: have you considered joining Prospect? It's too late to get cover for any existing issues but membership will cover you for future problems of this kind. Even if its with the existing employer provided you ride this rough patch out.

[Eloise01]

Re: (Unfair) dismissal or redundancy?

In light of your delight in crystal ball gazing - which generally never gets very far - but you have checked the clawback term for what happens if you are dismissed and /or made redundant? Generally such clauses do not apply in the event of redundancy (although sometimes they do, and that is actually lawful), but they often do apply if the person is dismissed for any other reason. And don't shoot the messenger if that's what it says!

Alternatively, and by way of being only a suggestion, but some employers will waive the clawback (especially towards the end of the period) if the alternative may be to make redudancies that will cost them more money. But that's not law, that's just a possible negotiating point.

[sassy626]

Re: (Unfair) dismissal or redundancy?

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

[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.

[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?

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? :-)

[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.