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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 77829
Experience:  Qualified Solicitor
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I have a situation at work that I would like to be sure of

Customer Question

Hi I have a situation at work that I would like to be sure of the options before taking the next step
JA: Where are you? It matters because laws vary by location.
Customer: london
JA: What steps have you taken so far?
Customer: They have offered an option for me to enter into a formal review process or quit and take garden leave. I have asked them for a potential extension to the garden leave from 4-6 weeks should I agree to go this route and they have agreed
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 have been off on sick leave and returned to work 2 weeks ago.. this request was offered last week Thursday I have been working for them for 1 year and 3 months
Submitted: 14 days ago.
Category: Law
Expert:  Ben Jones replied 14 days ago.
Hello, I’m Ben, a solicitor, and it’s my pleasure to assist you. I may ask for some preliminary information to help me determine the legal position.
Customer: replied 14 days ago.
Sure
Expert:  Ben Jones replied 14 days ago.

I understand your employer has presented you with options concerning your employment. What official reason have they provided for presenting these to you?

Customer: replied 14 days ago.
Can we continue via text for now just in at work and it’s not the best place to talk
Customer: replied 14 days ago.
im
Customer: replied 14 days ago.
I had a 6 month review at 9/10 months last year where they asked for certain improvements in my standard of work and in their words demoted me although that was changing my job title but not my salary and also I guess less expectations.. but even that in itself I in fact applied for the role that I was demoted to but to justify the amount they were paying me they made me a senior role
Customer: replied 14 days ago.
They then had a progress discussion with me on the 17th march and asked me to feedback and said that this was an informal process for 4 weeks that would provide me the opportunity to work towards improvement
Customer: replied 14 days ago.
I then was signed off sick on the 23 march for 4 weeks
Expert:  Ben Jones replied 14 days ago.
OK thank you, ***** ***** they provided you with details of the formal review process?
Customer: replied 14 days ago.
I returned and then a follow up progress discussion was scheduled for 5th may where they said as I hadn’t made improvements or communicated with them on how I intended to improve I would either enter a now formal process from this week or I could choose to leave and they would offer 4 weeks garden leave
Customer: replied 14 days ago.
Details.. well not in detail just that it would be 4 weeks and I would be set targets that I would have to meet in otherwise it will result in dismissal
Customer: replied 14 days ago.
now I guess I am trying to understand my rights / next steps as they have said I have to let them know today what I would like to do..
Expert:  Ben Jones replied 14 days ago.

OK thank you, ***** ***** are you ideally hoping for, given the circumstances?

Customer: replied 14 days ago.
I had no intention of leaving and knew I needed to improve some elements.. but of course being off for stress in the middle and having been burnout out not had the capacity to address it. Now I feel as they are trying to push me out the next process is going to potentially more arduous and possibly unfair as their intention is to push me out.. as they said on the call they think I’m a square peg in a round hole and they’re are about to hire others in the company who are quite expensive and could do with the money they’re paying me
Customer: replied 14 days ago.
do I just push forward with the review process or call it quits take my money and run as it were..
Customer: replied 14 days ago.
I guess I also don’t know my rights should I want to challenge the way the process has been managed
Expert:  Ben Jones replied 14 days ago.

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now. I will get back to you with my full reply on here; usually the same day. The system will notify you when this happens. Many thanks.

Customer: replied 14 days ago.
Ok.. so in the meantime do I just not respond to their message?
Expert:  Ben Jones replied 14 days ago.

Hi there. I just want to make you aware that this is not always an instant service, due to various legal engagements I could have and I may not be able to reply immediately. However, rest assured that I will be dealing with your query and will get back to you as soon as I can. Thanks.

Expert:  Ben Jones replied 14 days ago.

Many thanks for your patience, it is appreciated. I am now pleased to be able to provide further assistance with your query. First of all, I am sorry to hear about the issues brought up by this. It must be a frustrating situation to be going through.

The main issue in the circumstances is the fact that you have only been continuously employed at your place of work for less than 2 years. That means that your employment rights will be somewhat limited. Most importantly, you will not have legal protection against unfair dismissal. This basically means that you can be dismissed for more or less any reason, if you have done nothing wrong and without a fair procedure being followed. The only exception is that the decision is not based on a reason which makes a dismissal automatically unfair.

As mentioned, there are some exceptions to this, in which case the 2-year rule does not apply. These include situations where the dismissal was wholly, or partly, due to:

- Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

- Taking, or trying to take, leave for family reasons including pregnancy, maternity/paternity leave, parental leave, adoption leave or leave for dependants

However, if the dismissal had nothing to do with any of the above exceptions, you would not be able to challenge it due to not meeting the minimum service criteria for claiming in the Employment Tribunal. In that case your only protection would be if you were dismissed in breach of contract. That would usually happen if you were not paid any contractual notice period due to you, unless you were dismissed for gross misconduct. That is where you were guilty of something very serious which justifies immediate dismissal, without any notice pay.

In any other circumstances, you would be due a minimum notice period, as per your contract, together with and associated pay. If you did not have a written contract in place, you would be entitled to the minimum statutory notice period of 1 week. You either have to be allowed to work that notice period and get paid as normal, or you can be paid in lieu of notice. That is when you are paid for the equivalent of the notice period but your employment is terminated immediately and you are not expected to work any further.

Based on the above, your rights will be rather limited, when it comes to challenging them or negotiating something better than what is on offer.

Expert:  Ben Jones replied 14 days ago.

I fully appreciate that this may not be the answer you were hoping for, however it is the legal position. Should you need any further clarification, I will be more than happy to discuss things further with you. Thank you

Customer: replied 14 days ago.
Ok I understand
Customer: replied 14 days ago.
if I was to go for the 6 week garden leave how would I word it and I only say that because as you can see on the image I attached she has written a clause that says she will require my decision before discussing in detail the garden leave
Customer: replied 14 days ago.
How then do I know what I am agreeing to
Customer: replied 14 days ago.
This is what I have written so far
Customer: replied 14 days ago.
File attached (3S1Z75Z)
Expert:  Ben Jones replied 14 days ago.

A garden leave period is basically where you are working your notice period, without the actual need to do any work or go into work. You are effectively spending the notice period in your garden at home, hence the phrase garden leave. You continue getting paid as normal but should also be available for work if needed by the employer. At the end of the garden leave period your employment would terminate.

Customer: replied 14 days ago.
Ok yes I know that but I’m wondering if I would be worried about that clause
Customer: replied 14 days ago.
should
Customer: replied 14 days ago.
if the wording of my response is fine
Expert:  Ben Jones replied 14 days ago.

Well you are saying that you do not know what you are agreeing to, but they are proposing the garden leave period so not sure what you are trying to say in your response?

Customer: replied 14 days ago.
Well I don’t want them to say garden leave for 6 weeks and then behind the scenes they have a plan to do something different with a loop hole.. why would they say they can’t provide the details until I agree
Customer: replied 14 days ago.
Surely I’m entitled to know what the process is before I agree?
Expert:  Ben Jones replied 14 days ago.

I am pretty certain that the whole point of the garden leave is that you agree to leave and in return they will drop the performance management, There is no point in performance management if you are leaving on 6 weeks time, especially when you will not be working during that time.

Customer: replied 14 days ago.
Ok sure thanks.. I’ll send my response as is.. if anything weird pops up I’ll get back in touch
Customer: replied 14 days ago.
Thanks for the time
Expert:  Ben Jones replied 14 days ago.

No problem, all the best for now