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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 73475
Experience:  Qualified Employment Solicitor
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I was recently placed on Personal performance plan

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Good evening
JA: Hello. How can I help?
Customer: I was recently placed on Personal performance plan [Capability) a lot of the examples given are untrue or misleading and I have evidence to prove it. Is this defamation of character? I have now been accused of misconduct and am under investigation for a separate issue.
JA: Was the accusation discussed with a manager or HR? Or with a lawyer?
Customer: My manager put me on the PIP and my HR manager was present
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am an employee in a secondary school office
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I think they are trying to get me to leave. I was off briefly before Christmas with anxiety and depression after I was called into another meeting so my manager could complain about my work. Mostly just small petty things. There have been 3 such meetings over the course of the year, each one with different complaints, the 3rd is when I got the PIP

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

How long have you worked there for? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 11 days ago.

Good morning Ben

I have worked at the school for 8 years with no previous problems

Thank you

Dawn

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. First of all, I am sorry to hear about the issues you have experienced in your situation.

It is unlikely this will be viewed as defamation of character as the allegations have not been published, they have been kept between you and the employer. In any event, defamation is very complex and expensive to pursue legally so it would not have been a realistic legal claim here.

Instead, this will more likely result in constructive dismissal (unless you are dismissed first). This occurs when the following two elements are present:

- A 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. This is an implied term, of a contractual nature, which automatically exists in every employment relationship. It is there to ensure that the employer and employee treat each her fairly and reasonably. The breaches that could qualify could be a serious single one, or a series of less serious, but still relevant breaches over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

Before constructive dismissal is pursued, it is strongly recommended that a formal grievance is raised in order to officially bring the concerns to the employer's attention and give them an opportunity to try and resolve them.

If resignation appears to be the only option going forward, it must be done in response to the alleged breach(es) (i.e. without unreasonable delay after they have occurred, so as not to give the impression that these breaches have been affirmed). Whilst not strictly required, a resignation would normally be with immediate effect and without serving any notice period. The reason is that the whole argument would be that things had become so bad that the employee cannot even continue working there a day longer. It is also advisable to resign in writing, stating the reasons for the resignation and that the whole situation 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, unless the reasons for resignation are linked to some limited exceptions, such as due to discrimination (on grounds of gender, race, religion, age, disability), or due to another protected act, like raising health and safety concerns or making other protected disclosures. 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 also worth mentioning that there is a possible alternative solution to this, which could avoid the need for legal action. That is where the employer is approached on a 'without prejudice' basis (i.e. off the record and with protection against these discussions being brought up in future legal proceedings) to try and discuss the possibility of leaving under a settlement agreement. This can be done by asking for a meeting, or it can be done in writing, via letter or email. Under a settlement 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 the Employment Tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. There is nothing to lose by approaching this subject with the employer and testing the waters on this possibility - 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.

Please follow this link to ACAS for some more general information about constructive dismissal:

https://www.acas.org.uk/dismissals/constructive-dismissal

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

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