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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50175
Experience:  Qualified Employment Solicitor
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hi I have just failed a performance improvement plan and

Customer Question


I have just failed a performance improvement plan and they now want to send me to occupational health prior to calling the capability hearing, should i do this? I have told my employer that I am pregnant also. I understand that i need to be employed for 26 weeks to get my maternity pay, If i handed notice in (2 months) would I still get my maternity pay entitlement? could I claim maternity allowance if i resign? can employer give me a bad reference as result of failure of the pip?

Kind Regards
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. Why do they want to send you to OH, is it a medical condition they are concerned about?

JACUSTOMER-10u5h3z6- :

due to my pregnancy and i am also suffering from arthritis in my hands and de quervains disease, this may have affected by ability to perform my work

Ben Jones :

When did you star working there?

JACUSTOMER-10u5h3z6- :

7 years ago

Ben Jones :

ok when you asked for the 26 week requirement for maternity pay I thought you had not been there for that long?

JACUSTOMER-10u5h3z6- :

oh ok, no a long time, just concerned about being paid through maternity

JACUSTOMER-10u5h3z6- :


Ben Jones :

yes I just need to get my response ready

JACUSTOMER-10u5h3z6- :

ok thank you

Ben Jones :

If you are being asked to see OH then it may be advisable to do so, in order to allow them to determine your situation in more detail and work out what has caused the current issues in relation to performance. If they agree that this is something related to your pregnancy then they may advise the employer to be more lenient in order to avoid discrimination, or if it is something related to a disability, such as your arthritis, then it could also prompt them to suggest reasonable adjustments that the employer should introduce instead of going down the capability route.

For maternity pay, you need to have been continuously employed for at least 26 weeks by the end of the Qualifying Week, which is the 15th week before the expected week of childbirth (EWC). So if you were to resign then ensure that you remain employed at that date.

You may indeed be entitled to MA instead, although check the eligibility criteria here to ensure you would qualify:

Finally, the reference - they should only provide factual information in a reference, nothing that is untrue or misleading. So it depends on what you consider a bad reference - a reference can still be bad if it contains the truth but that would not be unlawful as such.

JACUSTOMER-10u5h3z6- : So if I handed in my notice, would and the qualifying week falls in my notice period is my employer required to pay my maternity money?
Ben Jones :

if you are still employed in the qualifying week then yes your employer would have to pay you SMP even if you leave afterwards

JACUSTOMER-10u5h3z6- : Ok, do they have to give me my full notice period even in the pip process? Not a reduced notice period? Could I negotiate a neutral reference i f I decide to resign? Is you advice that I should see how the occupational health pans out before deciding to resign? Is it better to resign rather than be sacked in the view of future employers?
Ben Jones :

yes you are entitled to your full notice period unless they dismiss you for gross misconduct but I do not see anything to suggest this is the case here. You may indeed try and negotiate a neutral reference but that is between you and the employer. Resignation is usually better than dismissal, that is true

JACUSTOMER-10u5h3z6- : Ok thank you, what happens with payment through this website, do I have to rate before I am charged? I am concerned because I have received an email saying that I have already been charged, it said only if I am happy with advice though, I am hoping this website is legit, not offence to you intended
Ben Jones :

none taken :) basically you pay a deposit to ask the question and when you are satisfied and rate it transfers that deposit and completes the payment process

JACUSTOMER-10u5h3z6- : so no additional charges just the £22 if am happy?
Ben Jones :

that is correct

JACUSTOMER-10u5h3z6- : Ok thanks for your time
Ben Jones :

you are most welcome, all the best