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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I recently received my performance feed back which was

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I recently received my performance feed back which was abysmal. Basically, I was told that I was very poor on subjective things were I can demonstrate I communicated issues etc. This is surprising as a had, monthly, 1-2-1's and nothing was brought-up. Also, I never got to see the document as it was always on a Skype type meeting format. I was also, tasked to do other unplanned activities but they were not on my performance. For two of these different activities I received champions awards . The score I have been given has destroyed my reputation and character. What are my options please?
I have feed back through our process but don't expect an answermany thanksIan

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

How long have you worked there for?

Customer: replied 1 month ago.
10 years sorry had lost connection
Customer: replied 1 month ago.
Can I call tomorrow morning say 11:00 osh

Hi there, if you wanted to challenge the employer over this and take the matter further you basically have three options - use the formal appeals process, raise a formal grievance or resign and claim constructive dismissal.

The first two options are relatively self-explanatory as you just follow a set process to raise your concerns. The constructive dismissal is really the last resort step, which is where you are forced to leave due to the employer’s unreasonable behaviour. It is not just any behaviour though, it has to be serious enough to make your contract be breached, so it can also include things like a breach of the implied trust and confidence. In your example, you are looking at completely unsubstantiated allegations of poor performance, where the employer clearly cannot justify them or provide any evidence of the allegations, or they are deliberately targeting and undermining you.

So as you can see, there is no easy way of resolving this without actually going as far as leaving your job. You cannot make a claim anywhere whilst remaining employed and hoping they help you resolve this - you can only approach an independent body like a tribunal once you have left (or been forced out).

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the constructive dismissal option and how to pursue that. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Customer: replied 1 month ago.
BenThat’s great I will digest your optionsI will most likely be looking at constructive
The reason is in 2012 I whistleblowed to our compliance ireegular activities
I did not name anyone and did inform senior team of what Inwas doing and why
Ever since then my reviews have been negative and bringing me down

There is a further claim of detrimental treatment due to whistleblowing, for which you do not have to leave (or can claim in addition to constructive dismissal if you left). The only issue with that is that it happened such a long time ago that the effect could have been easily lost over time as you would have basically implied that you agree with it (or that you do not mind what happened) so I would likely just stick with constructive dismissal instead.

Customer: replied 1 month ago.
I did raise a grievance but it was s laugh

if the grievance did not help then in the end constructive dismissal may be the only option, also note it should not be unreasonably delayed so the sooner after the allege breach the better

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a quick second to leave a positive rating by selecting 3, 4 or 5 stars above. The question will not close and I can continue with my advice as discussed. Thank you

Ben Jones and other Law Specialists are ready to help you

Thank you. As mentioned, this could potentially amount to constructive dismissal, which 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.

Whilst the alleged breach could be a breach of a specific contractual term, it is also common for a breach to occur when the implied term of trust and confidence has been broken. The conduct relied on could be a serious single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

If resignation appears to be the only option going forward, it must be done in response to the alleged breaches (i.e. without unreasonable delay after they have occurred). Whilst not legally required, a resignation would normally be with immediate effect and without serving any notice period. It is also advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.

Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service with the employer. There is a time limit of 3 months from the date of termination of employment to submit a claim in the employment tribunal.

It is worth mentioning that there is a possible alternative solution, where the employer is approached on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under such an agreement, the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. It just means that these discussions cannot be brought up in any subsequent tribunal claim and prejudice either party. So there is nothing to lose by raising this possibility with them as the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.