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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44962
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Not sure what to do at work. Cannot leave as have children

Customer Question

Not sure what to do at work. Cannot leave as have children and mortgage but feel isolated, ignored and looked down at. Would like to know what my rights are and if tribunal could be an option please.

Sorry th ebelow is a bit long but I would like you to gain understanding of the situation.

1. A bit of medical history. In November 11 I was diagnosed with suffering from anxiety, stress and depression from my GP and the Occupational Health at work. This was following a family bereavement. For this I went through councelling and to date have not fully recovered but am trying to get back to normal. In October 12, I was diagnosed with degenerative and bulged disk in the lower back and have had physio treatment till last week. The bulge disk will take some time to heal and the degenerative element may be permanent.

2. This week I had my meeting with the manager regarding the 2012 year end pay and reward. I was told that been given no pay rise and no bonus. Plus a performance rating of 4. I’ve been with the company since 2001 and till now have always had a rating of 3 and always a bonus and pay rise or one of the two. My basic salary was increased to £46k in April 2008 and since then to date £500 rise, in April 2010, but have had bonuses each year differing amounts. During 2010 the senior manager did try and encourage me to leave his department and he did say that he will not give me a pay rise going forward. Pus in that year I had requested for a pay review and had similar answers back.

3. The performance rating scale ranges from 1-5, with 5 worst. The 4 rating is ‘Inconsistent’. and is defined as inconsistently meeting performance expectations and/or not meeting behavioural expectations. Below peers and the competitive market. Aditionally, the rating 4&5 is defined as delivers results below the level expected for level and role. Fails to consistently meet performance objectives. Fails to contribute adequately to HSBC’s success. Not meeting behavioural expectations which undermine HSBC’’s values and business principles. I’ve been given this rating without any explanation.

4. Every year all employees are given objectives, agreed and entered in the system. They then have mid year and year end appraisals and managers and employee comments entered and agreed and then system locked. Plus in our department senior (above my manager) insists that everyone has regular meetings every two weeks with their line managers to discuss work. This has been the case with me too till last year when the senior manager said to me that I did not need to have written objectives in the system as he knew what I was doing. Plus last year I did not have mid year appraisal or the year end appraisal nor at any stage told of any work or behavioural issues or that anything been entered in the system. Plus my line manager did not have 2 weekly meetings. He is based in Birmingham and only had a few brief video conferences meetings throughout the year, even though he regularly comes to our London office but has only come twice to say just hello in the whole year.

5. The pay and reward meeting this week was with the line manager, he told me that my appraisal and rating been entered in the system too, which was a surprise.

6. Last year in December I requested to see if I could have a specialist chair at work due to my degenerative and bulged disk. For this I had a work assessment by a specialist in early January 13. She sent a report to Occupational Health Manager on 17 January recommending a specialised work chair with couple of other hardware. OHM then forwarded this to HR with a sanction form to order and advised to share the report withme, she copied my line manager on the email. The HR lady then forwarded this email to my line manager to order the equipment. I was not copied on any of the emails. Since the visit in early January I had not heard anything back and so on 22 February I sent an email to HR asking the outcome. The HR lady did not reply back and then on 1 March I sent another email asking for a reply, she replied that it’s all been sent to my line manager on 17 January to action. My line manager has not said anything to me about this. It’s painful for me to sit on the current chair as it hurts my back on the problem area.

7. Last year all the individual teams within my departments were asked to organised team day outs paid for by the company. Each team organised their own. Within each team there are employees based in London and outside e.g. Birmingham. This was not an issue as company paid for the tickets for employees to get together. My team which is based in Birmingham office apart from me, I think, organised theirs on 21 November 12. I was not told or invited. The only way I found was I sent an email to line manager on that day and an out of office reply came saying he’s out on team bonding day. I may or may not have gone to this due to back issues etc but still would have been nice to be asked. I felt very bad.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know if others have received a pay rise in the meantime and if so what were they based on?
Customer: replied 3 years ago.


Hi Ben am glad it's you. I had the advice from you in Dec11 (i think)regarding the wrok situation following my diagnosis of strees, anxiety and depression and the advice was very good.


 


Re your question. I don't know but am sure others have definitely received rise, if not all. Have seen happy faces and not happy in the department following these reviews. Plus on Tuesday the senior manager was taling to my colleague sitting next to me and saying if she has ordered her BMW follwoing her appraisal.

Expert:  Ben Jones replied 3 years ago.
Hello again, in your position you only realistically have the following options:

1. The first is to try and resolve this matter internally. This would be achieved through a formal grievance submitted to the employer. This will give the employer the chance to consider your complaints, formally investigate them and decide if there is anything that needs resolving and also what needs to happen to deal with them. You can appeal any decision you are unhappy with.

2. If I remember correctly I advised you on your condition and that it is likely to amount to a disability under law. If an employer fails to make reasonable adjustments or generally treats you detrimentally due to this, then this could amount to discrimination, which is unlawful. You may make a claim for disability discrimination whilst still employed and seek compensation for injury to feelings or other financial losses incurred. However to claim you must submit your claim within 3 months of the alleged discriminatory act taking place. Whilst there is a recent act you can rely on, to be able to include the older occurrences you must be able to show that they were all part of a series of connected discriminatory acts by the employer. So there is a risk the tribunal may say that they were not linked and you can only claim for the latest incident which could affect the claim.

3. Finally, you can still resign and claim constructive dismissal. This is not always an easy claim to win though and it can be risky as you will be giving up your job without a guarantee of going into something else. However, you may find yourself in position that you feel enough is enough and cannot see yourself continuing there, in which case this option will be all you have left. At the same time you can make a discrimination claim still, as above.

Whatever claim you make, the possibility of the employer trying to settle it exists. So you may not have to go all the way through a full claim to get anything out of it and it is common for employers to try and offer you some form of financial settlement for you to drop your claim.
Customer: replied 3 years ago.

Thank you Ben, you have covered all angles, appreciated. However, it's diffcult for me to decide on the course. To be honest, I would like a way out of the job now. Would you know any no win no fee lawers and then I could take a loan to cover exenses for few months and go constructive dismissal way. Else it's option 1 most like but may be 2. Would appreciate an honest opinion from you, will not hold you against that in any way.

Expert:  Ben Jones replied 3 years ago.
I fully appreciate that there will be no easy decision here - it is after all a big deal for you. You could actually try and raise the grievance then as part of it to try and negotiate a compromised exit - they could see this as an easy way out of this as well so you have nothing to lose by at least trying. No win no fee employment lawyers are far and in between, plus we are not allowed to refer any on here I'm afraid. However going to the Law Society and searching for local lawyers to you, in effect shopping around for what they can do for you is a good start.
Customer: replied 3 years ago.


Thank you Ben, sorry if i'm taking time but am willing to pay more.


 


Could the work be trying to build a case against me by giving a rating of 4 etc and taking me towards sacking. Is there anything I should be careful of.

Expert:  Ben Jones replied 3 years ago.
It's not a problem. An employer can potentially dismiss an employee for poor performance but that cannot just happen out of the blue and it will take time if they want it to be fair.

In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given realistic 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 employee know what was required of them;
• Did the employer take steps to minimise the risk of poor performance;
• Was a proper appraisal conducted and was the problem identified;
• Were training, supervision and encouragement provided;
• Did the employer warn the employee of the consequences of failing to improve;
• Did they give the employee the chance to improve;
• Did the employer consider alternative employment.

These are the factors a tribunal would look at.
Customer: replied 3 years ago.


Sorry Ben, a final question.


 


Re last year appraisal could they throw it back on me that why did I not discuss or mention to my line manager i.e. it's all my fault for not approaching him and saying where is my appraisal and rating before the deadline. Bearing in mind, the objectives for 2013 should have been discussed with line managers by 28th February and again with me line manager or the senior has not said anything.


 


Plus the line manager is claiming now that he is not my line manager anymore even though nothing officially been said to me or told who i may be reporting to otherwise. On paper and officially he is still my line manager.

Expert:  Ben Jones replied 3 years ago.
is it normally up to you to chase managers for your appraisal? In my experience it is the employer's responsibility to carry out the appraisals and even though an employee may nudge the employer if their appraisal is late it should not be their duty to organise this unless there is a specific policy in that.

You should get clarification from higher up as to who your manager is and who you are expected to report to
Customer: replied 3 years ago.

Sorry i'm taking a lot of time but again thank you. I will start the formal grievance way first.


 


Can I please say something on the lines below. I realise some are more than 3 month old issues but I feel strongly and would not mind an answer. I will improve the text later but general writing process of the letter.


 


 


‘I would like to raise a formal grievance please. The main reason are as follows:


 


1).I have strong evidence to suggest that my condition amounts to a disability under the Equality Act 2010 and I do not believe that I have been treated fairly in the circumstances, for example, the hardware sanctioned by HR and OH has not yet been provided and it's extremely uncomfprtable for me to sit....... I have been refused flexibility to start late on certain days or work a day from home, when I believe there may be flexibility towards some other colleagues.


 


2). Why I been given a rating of 4 prior to a discussion explaining the reasons and listening to my justification otherwise.


 


3). Why this rating been entered in the system and closed off without my agreement.


 


4). Why was I not invited at the team building events in late 2012.


 


5). Why since April 2008 I have only had a pay rise of £500. Have any other team member had a rise in that time.


 


6). Why some junior memebers in the team (junior to me at one stage)been promoted to management level and me left behind.


 


etc

Expert:  Ben Jones replied 3 years ago.
Some comments marked with ***ac

I would like to raise a formal grievance please. The main reason are as follows:



1).I have strong evidence to suggest that my condition amounts to a disability under the Equality Act 2010 and I do not believe that I have been treated fairly in the circumstances, for example, the hardware sanctioned by HR and OH has not yet been provided and it's extremely uncomfprtable for me to sit....... I have been refused flexibility to start late on certain days or work a day from home, when I believe there may be flexibility towards some other colleagues. ***These actions would amount to disability discrimination as I am being treated detrimentally due to my condition and you, as an employer, have failed to make reasonable adjustments which you must do as required by law.



2). Why ***have I been given a rating of 4 prior to a discussion explaining the reasons and listening to my justification otherwise.



3). Why this rating been entered in the system and closed off without my agreement.



4). Why was I not invited at the team building events in late 2012.



5). Why since April 2008 I have only had a pay rise of £500. Have any other team member had a rise in that time.



6). Why *** have some junior members in the team (junior to me at one stage) been promoted to management level and ***I have been left behind.
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44962
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.


thank you

Expert:  Ben Jones replied 3 years ago.
Myleasure and thank you for the bonus - gratefully received

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