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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49502
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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FOR BEN * * Ben, I have been working for the same company

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FOR BEN JONES * *Hi Ben,
I have been working for the same company for 17 years. I have been in my current role now for Almost 6 years. I have a full time permanent position. My manager of 5 years today informed me that from Monday I was going to be placed on formal performance management and I would receive a copy of this performance improvement plan on Friday which we would review in a meeting on Monday. He made me aware that if my performance did not improve in line with the plan I could face disciplinary sanctions. As part of the same conversation he said there were other options I might want to consider for example looking for an alternative role within the company or some kind of compromise agreement. Would this be a normal procedure or does this sound like the result of the performance management procedure is predetermined? Is there any advice on this or what a compromise agreement would even comprise of? Could this be construed as the beginnings of 'Constructive Dismissal'? Many thanks for your assistance.
Karen

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Do you know why they may have instigated these performance proceedings?

Customer: replied 3 months ago.
Hi Ben, thank you for your help. As there has been a drop in sales this may have instigated the proceedings.
Customer: replied 3 months ago.
sorry Ben can't talk at the moment.
Customer: replied 3 months ago.
Please continue online advice if possible. Many thanks in advance for your kind help.

It is not a given that the outcome has been pre-determined, although that is still a possibility. It is not uncommon to be offered alternative resolutions rather than be taken through a full performance procedure so I am not that surprised that the employer has placed these on the table.

A settlement agreement would usually be a financial settlement where you are compensated for voluntarily leaving the company and in return you agree not to make any claims against them in the future. It can also include a reference. The amount that is offered will be negotiated between you and the employer so in the end it will have to be something which you are both happy to accept and they are happy to pay. Neither party can be forced to agree to it though so it will only happen if you both agree on the terms.

As to constructive dismissal, it is too early to say if that would be applicable. It occurs when the following two elements are present:

· Serious breach of contract by the employer; and

· An acceptance of that breach by the employee, who resigns in response to it.

If there were genuine reasons for commencing the performance procedure and they follow it correctly, then it is unlikely that constructive dismissal would be an option. However,m if this was clearly a smoke screen for something else and they are trying to push you out for no apparent reason, then yes, it is indeed a potential claim you can consider. However, remember that the likelihood is that you may end up with a settlement agreement anyway before any claim is heard in tribunal (unless you obviously refuse all offers and proceed with the claim to the end).

So if you believe that they want you out, that you no longer want to be there as a result of this and that you want a quiet exit, then a settlement agreement, if it can be negotiated, may be the best option.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

Customer: replied 3 months ago.
What do i need to look for in terms of breach of contract? Can you advise on the appropriate figure I would be looking for with my length of service and position? I have 17 years service (10 of which managerial) and I also have a final salary pension.

Breach of contract can be a serious breach of an explicit contractual term (I cannot say what that may be as it very much depends on what your contract contains and also what the employer does to potentially breach that); or it could be a breach of trust and confidence, where they are clearly going ahead with a performance process under false pretences and only using it to justify removing you when normally you would not have done anything wrong.

In terms of a settlement figure, it is very difficult to say what that should be - there are so many factors that can be taken into account, especially how strong a case you may have if you were to go on and claim against them, which is way too early to consider. But before you are able to agree on a settlement agreement you will need to take formal independent advice from a solicitor so you will be able to discuss with them in more detail whether the current offer is appropriate or if you should be negotiating for more. Hope this clarifies?

Customer: replied 3 months ago.
Thanka so much for your advice Ben.

you are most welcome

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