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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50487
Experience:  Qualified Employment Solicitor
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I am have had a review meeting which was followed up by a

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I am have had a review meeting which was followed up by a disciplinary letter to say they want to devise a performance plan with me tomorrow. I have 7 days to appeal the letter but they have stuck in a meeting to work on a plan before the 7 days. I plan to resign as i don't want the hassle of going through an appeal even though i feel they have been unfair. I am worried that they won't accept my resignation at this stage and still put me on the 5 weeks plan and dismiss me at the end. Can they do that? i have been here for 1.6 years. Please advise. I have not slept in days and it is the only thing i can think of...

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

How long is the notice period you must serve?

Customer: replied 4 months ago.
A PM's notice period is 2 months. The review plan is 5 weeks with regular weekly meetings to review against an agreed plan

You are free to resign at any time - the employer cannot refuse to accept your resignation. However, if you were to resign you would be required to give them the notice period in your contract, which you have confirmed is 2 months. You would be expected to continue working as normal during that period, unless they agree to let you go earlier. What could happen is that you give in your notice and start working the 2 month notice period, only for the employer to still proceed with the performance plan which is shorter than your notice period.

You could try and negotiate with them to just let you go and remind them that doing so would save them time and resources by not having to take you through the full performance procedure.

If they refuse to do so, you either have to continue there for the notice period, or take the risk and leave with immediate effect. However if the employee fails to honour their notice period they will be acting in breach of contract. Whilst no one can physically force them to work through their notice period, it would instead allow the employer to sue them for compensation for losses/damages resulting from their breach.

In reality such claims are very rarely made. This is mainly due to the costs and time involved, also the relatively small damages that can be recovered. The employer has to show that actual losses have been incurred and often that is not easy to do. The most common damages they would claim for are if they have to engage temporary cover for the employee’s duties and the extra wages they have to pay them or recruitment fees for recruiting a replacement at short notice.

So whilst there is no way of predicting whether the employer will take this any further, chances are that they will not. A more likely outcome is that the employer refuses to provide a reference in the future or if they do, it could mention that the employee had breached their contract.

It is therefore best to try and negotiate a mutually acceptable notice period that would suit both parties. However, if that is not possible and there is a pressing need to leave early, that is still a possibility, subject to the risks identified above.

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 4 months ago.
I received the first email for a performance review, with attachments of evidence against me to try to prove a case for me not performing to PM standards, that was on Monday. The meeting with my Manager and the HR lady was on Wednesday. On Thursday evening i received a follow up letter detailing that they were unsatisfied with my feedback/reasons for underperformance and i will be undergoing a closely monitored review for 5 weeks with regular weekly reviews. Nothing more was detailed in terms of what happens after 5 weeks. I feel it is unfair as it is all based on one bad client feedback where they questioned my value on the project. I returned from holiday to a meeting arranged at 9 am to discuss what had happened. I justified my actions. Nothing was mentioned until after the Christmas break when annual performance reviews were happening then all this evidence was attached to my performance review invite with a letter of concern. Some of the feedback was from 6 months ago from internal people, no longer applicable in my opinion. I feel its unfair as the other pm works in a similar way and has had similar feedback but not the same interrogation, because she is friends with the co-owner, she used to baby sit her children.

None of the above is really challengeable under law. Your rights are rather limited unfortunately and this is down to your length of service, which is less than 2 years.

Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as their decision is not based on a reason which makes a dismissal automatically unfair. These include discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

However, if the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it. In that case your only protection would be if you were dismissed in breach of contract. That could happen if you were not paid your contractual notice period.

Therefore, the employer can hold this performance process even if it is based on unfair grounds, as long as it is not down to discrimination, of which I see no evidence. Does this clarify a bit more?

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 4 months ago.
Thank you Ben, I will hand in my resignation and try to mutually agree a notice period with them and see what they say tomorrow. Thanks for your help.Kind regards,Sunny

you are welcome and all the best