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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47399
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been employed full-time in my NHS job years.

Customer Question

I have been employed full-time in my NHS job for 14 years. I went on holiday in January this year and then returned to work in February. Two days after returning to work, I made an error. In February 2015 I was put on a Performance Capability Plan following a counselling meeting. The employer’s own performance policy states that the completion timeframe should be no longer than three months. Instead of keeping me in the department where I made the error, I was completely removed from there and put in another department for three months where I was signed off as competent one year ago. They have extended the performance plan to six months by putting me on a three month action plan in the other department where I made no error and then moving me back to the department where I made the error where I will be re-assessed and re-trained for a further three months. The latter three months will be the informal stage of the employer’s capability procedure. I also used to do 12 hour day shifts (7am to 7pm) along with 7 other colleagues, but they wanted to force me to start at 9am as part of the plan as there is meant to be more management support after 9am. They were trying to kick me off the long day shift before I made the error as they were told in 2014 that I was occasionally a few minutes late for work. I explained that this was due to circumstances beyond my control as my mother had been hospitalised for 10 weeks and as she needed 24 hour care it was having an impact on the family. I told them that I could not do regular 8 hour shifts as I needed the rest days to support my mother. When I had a meeting about timekeeping last year, the managers went against their own practice and did not do the informal meeting on a one-to-one basis. Two of them were in a meeting with me and I was unaccompanied. They gave me a diary. I felt demoralised as they have not done this to other employees who were late. I raised some concerns about the performance plan being over a prolonged period of time and having to duplicate my competencies in an area where I was already performing satisfactorily and also having to alter my working hours when it would probably not affect my training. After a meeting on 12th May 2015 with the department manager to clarify the issues, it was decided to reset the performance process to start on 18th May 2015. This was because of ‘circumstances beyond their control.’ My mother passed away suddenly at the end of February and she was buried at the end of March, but that is a situation beyond my control and I should not be penalised by having my performance plan prolonged. I was given a date in writing when I could return to my 12 hour shifts (Nov 2015). Since the 18th May 2015 I have stuck to my part of the deal by altering my working hours (although I stated in an email that I have not agreed to this, I am just doing it as part of a performance plan). I have to work four extra days over an eight week cycle to keep my full-time status as I do 10 hour days. Since this date, I have not had one performance review meeting with my line manager. The management team were given a copy of the meeting letter from 12th May 2015 stating that I have to complete training and competency assessments. My competency sheet is parked on the supervisor’s desk. All the supervisor did was print out an updated version and leave it on their desk. When the line manager spoke to me in March this year she said that she has not got an issue with my competencies, but I would top-up the existing competencies by doing audits and having a verbal result validating review as I did not have to have it the last time I was in the department, but now the goal posts have changed as the department gets inspected every three years for training status. Due to lack of meetings, I do not know what my objectives are and the letter and policy states that there are action plan outlines. Regular or fortnightly meetings should be taking place with the line manager. I am now worried that I will be prevented from leaving the department on in August 2015 if I have no evidence that I am competent in that department. • I do not feel it is my job to tell my supervisor or the line manager to review my performance or have verbal meetings with me. • Should I keep quiet and let them do what they want to do, or should I speak to my line manager and arrange a feedback meeting? • Will it go against me if my current training log is incomplete? • Presumably if the line manager was concerned about my performance, she would have told me, so do I just presume that I am competent at my job? • There is a general perception amongst employees that an employer cannot alter your working hours without your agreement. Has the employer done this legally? As I had no choice, I am basically working under protest.

Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today.just to clarify are your queries in relation to this the ones at the end of your post or do you wish to know something more specific?
Customer: replied 2 years ago.

Hi. My queries relate to the ones at the end of the post (more particularly, will I or my employer be seen to be at fault if they have not ticked all the boxes within the expected timeframe?).

Expert:  Ben Jones replied 2 years ago.
Hi, to answer your specific questions:
1. I do not feel it is my job to tell my supervisor or the line manager to review my performance or have verbal meetings with me. Should I keep quiet and let them do what they want to do, or should I speak to my line manager and arrange a feedback meeting?
You are correct that it should not be your job to chase the employer over this but at the same time if you know that they are not following the policy and doing what is expected of them you should not just stand back. So a little nudge when necessary would not hurt and can ensure that the policy is completed as required
2. Will it go against me if my current training log is incomplete?
It may do because the employer may use that as a primary or main reference when deciding on how successful you were with the capability procedure. So if there are any gaps you may want to try and fill them as best as you can
3. Presumably if the line manager was concerned about my performance, she would have told me, so do I just presume that I am competent at my job?
For the time being it is the best assumption, in many ways no news is good news as they say but of course it is no guarantee that there are no concerns and these could still be raised at a later stage
4. There is a general perception amongst employees that an employer cannot alter your working hours without your agreement. Has the employer done this legally? As I had no choice, I am basically working under protest.
There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:
• Receiving the employee’s express consent to the changes.
• Forcefully introducing the changes (called 'unilateral change of contract').
• Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms.
If the changes are introduced without the employee's consent, then the following options are available:
A. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.
B. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.
C. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.
Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

I feel they have gone over the top a bit by adding an extra three months to the plan, but as you say, I am in the position where I have to refill any gaps as they may use it as a reference marker for successful training.

The answers give me a good idea of where I stand if I do not act upon un-dealt with matters.

Finally, it does seem alarming that a change of situation or circumstance can lead to a change in an employee's contract conditions, especially when it is related to a single employee or not for business reasons.

Thanks for info. I gave rating earlier.

Expert:  Ben Jones replied 2 years ago.
You are welcome and i do agree that the employer may have acted somewhat heavy handed here. Instead of supporting you through what is a difficult time for you they appear to penalise you in a way but I hope this gets resolved soon for you