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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46790
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello,I was wondering if you could help me select best

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Hello, I was wondering if you could help me select best strategy in my employment situation. I am a mid-career professional and I worked for my current employer for about a year. They headhunted me from my previous company and paid relocation to Scotland. In the first six months the board changed and the manager I reported to was pushed away by the new team. My position was very volatile but I managed to stay in the team only to find out that my new manager doesn't want me and has someone she wanted to put in my role. I have been reporting to her for the last six months and it was a very tough time for me. I knew she was building a case against me but was not sure how and when she is going to use it. She disconnected me from most of the projects and stopped returning my emails about 3-4 weeks ago. She is based in US. I called HR yesterday and she told me they are preparing my performance review and that termination is quite likely. She then sent me the draft of the letter which I am due to receive on Monday. It is a well designed document with a lot of evidence of my "incompetence", some facts are twisted around to fit better in the picture and she also used other team members as a reference. I don't think there is any chance that I will be offered an improvement opportunity. I have been cut out from all the meetings, projects and communication for more then a month now and I don't think anyone is considering it. It may sound strange but I am happy that this long expected blow has finally arrived. HR told me I will be paid 3 months notice stated in my contract regardless. However I am very concerned with a potential bad reference that they might give to my future employers. Also I am very concerned that if I am terminated it is going to be a black mark which I will need to explain in all my future interviews. I am thinking to hand over my resignation notice and skip the whole performance review situation. Can you please kindly advice if this is a feasible option and if there are any hidden issues with handing over my notice prior to the scheduled performance review. I am quite certain that I would not be able to extend my employement beyond my notice period and I also don't want to spend another hour listening to my dreaded bully-manager. Appreciate your advice. Thank you Olga

Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Does your contract say that you can be dismissed by being paid in lieu of notice?

Customer:

Hello Ben,

Customer:

It says if employee serves notice of termination the company will have the option to terminate by serving not less then three months notice. On the other page it also says that if company decides that employee is incompetent they can terminate without notice. Although HR said I will be paid 3 month regardless I'm worried if they can find a way not to pay for example by proving incompetence in the performance review. I have attached pages from my contract for your reference. For some reason I haven't received notification to my email when you answered my question yesterday and only saw it this morning when logged in to the site. Thank you

Ben Jones :

Good morning, whilst the contract ay say that you can be dismissed without notice for incompetence, legally this is not allowed because you can only really be dismissed without notice if you have been found guilty of gross misconduct. This is not an incompetence issue, this is a misconduct matter where you have done something so serious that the contract is frustrated and they are allowed to terminate your employment immediately. We are talking about theft, violence, fraud, serious insubordination, putting the company into disrepute and so on. So regardless of what the contract says, they would need to give you the required notice period.


 


Now as far as your legal position is concerned, until you have at least 2 years’ service with the company you are not protected against unfair dismissal. This means that they can dismiss you a any time and for more or less any reason, without having to justify the fairness of such a dismissal. It could be based on a rumour, false allegations even nothing in particular. So if they wanted to dismiss you at this time, they quite easily can.


 


Therefore, it is about mitigating the effect of your termination. You can always resign and expect to be allowed to work through your notice period. Unless there is a clause that says they can pay you in lieu of notice you should be allowed to work through that period. However, it is also possible to try and negotiate with them, perhaps for an early release and also to get a reference. Say you both know this is not going anywhere and that eventually you will go your separate ways, instead of dragging this out you could approach your manager and state that as this is obvious and to make things easier for both, you are willing to leave immediately as long as you are paid your notice period and get a decent reference. That could be acceptable for them as they do not have to deal with you any longer and spend time on administrative issue or going through performance-related matters, and it would also be good for you as you can just move on and know you have a reference you can use in the future.

Customer:

Good morning Ben, i just realised that my relocation allowance was given to me under condition it can be clawed back if I leave before 18 months. I can't find it anywhere in my contract, but only in a free text from the headhunter when she negotiated conditions with me. I remember I signed the offer but I can't find it anywhere to check if this condition was written on it or not.

Customer:

Do you think if I hand in my notice they might try to use this and take the money from my notice period payment?

Customer:

When I spoke with HR she said that its at their discretion whether to ask me to work the notice period or just pay me money. Judging from the isolation I was put in I don't think anyone wants me to do any work. I was struggling to get involved and do some work as my manager pushed me out of all my projects and meetings

Customer:

My performance review is scheduled for Tuesday and on Monday I will receive a written notification of it with the signatures. I was thinking that if I decide to resign I should be submitting my notice before I receive anything. Does it matter? Or should I try to speak with HR and offer possibility of my resignation and asking if they would be in position to give me decent references?

Ben Jones :

It's anyone's guess whether they actually go ahead and try to apply this clause that you believe you agreed to - some employers may, others may not, It's impossible to predict really. But if they do then they would need something clear in writing from you so it also depends if that still exists anywhere. You do not need to resign before you receive anything in relation to the performance - it is up to you when you do so. You could wait until then to see where the employer is trying to take this or you could just approach HR next time you are in to see whether you can just agree on something where you are allowed to leave

Customer:

Hi Ben, thank you very much for clarification. In the letter draft I received on Friday it says that I should be aware that due to my seniority this performance review may result in termination. My understanding was that this will happen right there in the review and if I go into this review it will be too late to ask for resignation. Is my understanding correct?

Ben Jones :

That could potentially happen, assuming you have been told that the termination could happen in the meeting, although there is no guarantee and it depends on how the employer undertakes these procedures - they could have the review meeting first then dismiss later, or it could happen at the meeting - but it does not mean it would be too late because this is still subject to negotiation - you can still agree on something at the meeting

Customer:

Hi Ben, thank you very much for your kind help, you helped me to make an important decision. I am going to speak with the HR and offer her my resignation in exchange for good references.

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



www.justanswer.com/law/expert-ben-jones/

Customer:

One last question if I may. I believe that they have in my file job offer signed by me with the following text: "relocation payment of £6,500.00. (Subject to claw back in the event the executive resigns their position within 18 month period)." should I ask about it when I approach them to agree resignation or it's best to keep quiet about it? Can they come back to me after we agreed that I resign and say"we just found in your file that you owe us your relocation and we will take it off your last payment". thank you

Ben Jones :

Hi sorry I was offline when you replied yesterday. Don't just ignore this because it could come back and bite you in the future if they want to apply it. Even if they allow you to leave by resigning the clause would still be valid unless they had formally agreed to waive it so you may wish to approach this subject with them when discussing your options. They cannot take that money from your pay unless there is a specific statement that says they may do so (a general claw back clause would not be enough, there must be something which states specifically that they can deduct it from your pay). However, if there is such a wording then they may do so as it gives them the contractual right to deduct it if necessary. Hope this clarifies?

Customer:

yes it does. Thank you very much Ben once again. Olga

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46790
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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