To think I'm being discriminated against for mental health and/or pregnancy?

[findmeatyoga]

Trying not to drip feed...

I'm on mat leave after my baby arrived prematurely, the weekend before I was due my annual appraisal. Background is I work as an exec assistant and was part of founding team for the company, been with the team (most of whom have left over the years) for 10 years. I've always done well in appraisals bar one year about 5 years ago. At the end of our financial year, we all get a bonus split into two - company (which everyone gets regardless of performance) is a % of base) and performance (discretionary; I've always for excellent performance bonus except for that bad year, when I got none).

I was signed off with depression for 10 weeks at the start of this year (bereavement-ridden 2017 nearly ended me) and when I returned to work I was pregnant - it happened while I was on medical leave. So we all knew I wouldn't be there for long before mat leave kicked in.

On my return I found out we were no longer looking for succession for the practice I sit in - it will be phasing out when my boss retires in 3 years, which has been a little demotivating. I got involved in events and other projects across the firm instead but given impending mat leave and that I was trying to get back on my feet re mental health, I didn’t feel I could get my teeth properly stuck into anything.

I had my appraisal by phonecall this week, it was meant to be a few weeks ago but due to early arrival of my baby i went on mat leave earlier than expected.

Anyway they've decided there "isn’t enough to go on to grade me on" this year and so have decided not to grade me at all which means no performance bonus. The company one is good but that doesn't detract from not having performance recognised at all.

I can’t help but feel they don’t want me to return (despite them saying how excited they are about it etc 🙄) and that I’m being discriminated against. It wasn’t my best year for the reasons above, but you only don’t get a performance grade if you’ve been really shit. Obviously I shed a few (silent I hope) tears on the call and have woken up today feeling truly grotty.

But it's a performance bonus and you havnt performed not matter what the reasons

They can't say you've over performed but can't say you've under performed either.

If you did exactly what you were meant to do, no more no less, would they normally award a bonus for that? My work wouldn't so if I hadn't been there enough for them to judge my performance I'd expect a satisfactory performance rating but no bonus.

They simply said they don't have enough to go on to grade you on that's all..There's not enough to go by as you've missed chunks of time and your input wasn't consistent.

@findmeatyoga

You have a very good legal case!

Your company should have done a modified appraisal based on the amount of time you were in the office. They are not allowed to penalise you for being sick, pregnant or having a baby.

The standard in this scenario is to give you the basic 'good' rating, which would enable you to obtain your usual bonuses.

As your company is small, AND winding down, I suspect there is no proper HR department? They have probably guessed at what they should do, which in this case could very much be seen as discriminatory.

Have you called ACAS for advice on this? Maternity Action may also have some pointers.

Also, did they pay you any KITT for doing the appraisal by phone? I assume there was no opt out for this?

You have a few things to consider/ find answers to in addition to this.

As the company have said they will be winding down, have they discussed redundancy options?

Is winding down the only succession option? Would they consider some form of management buyout (MBO/ BIMBO/ VIMBO etc.?)

If they would consider a management buyout, have you looked at whether you would like to do this? Have you explored fundraising options (you can get loans and even equity support to do a phased buyout as existing staff).

However, if the buyout route is an option and is of interest, you will need to be diplomatic in asking for your usual bonus.

But it's a performance bonus and you havnt performed
This ^^. You can't claim discrimination. You had the opportunity to perform while you were at work & you say yourself that I didn’t feel I could get my teeth properly stuck into anything. So you don't get a performance bonus this time. When you're back from maternity leave (assuming you're there for enough time before the next bonus is due) you can work hard & earn a bonus. But you have to actually earn it, that's why it's called a 'performance bonus' and not a 'turned up for work bonus'

The standard in this scenario is to give you the basic 'good' rating, which would enable you to obtain your usual bonuses.
Er no, the standard is to judge her on how she's performed when she WAS there. She hasn't performed well enough for a bonus. It's a bonus, not her salary. She got her salary for turning up, a bonus is to reflect doing her job well. She hasn't done that.

It's a performance bonus & you didn't perform when you were in work

I was off work with a broken leg for 3 months & my performance bonus will be reduced to reflect that. I was off sick & not my fault but work can't reward me for not performing during that time

Is it classed as part of your remuneration,so contractual? If so they should pro-rata it based on the time you were there for the period being assessed.

As other pp's, I wouldn't expect a perf bonus if I hadn't been perfing. I'm not expecting one next time due to this year being a complete clusterfuck with bereavements and sicknesses.

Sorry OP, I know it makes life that bit harder but honestly you should never ever plan around the expectation of a discretionary bonus. Even the corporate part can fail if the beancounters screw up in their forecast or external market shifts happen at the wrong moment.

Er no, the standard is to judge her on how she's performed when she WAS there.

You’re getting this wrong. Did you read the OP? They said that there wasn’t there enough for them to judge whether she was good or bad. They did not say she had performed badly while she was there.

Bibijayne is right and you’re wrong. They made no reference to her performance other than to say there was no way to judge it because of her absence.

She is still entitled to the proportion pro rata of her bonus for the time when she was at work, found some info here:

www.xperthr.co.uk/faq/during-maternity-leave-an-employee-is-not-entitled-to-the-benefit-of-terms-and-conditions-relating-to-remuneration-but-what-counts-as-remuneration/93545/

Assume it is the same for sick pay.

Thanks so much to you all for taking the time to comment, I'm finding your opinions and advice very interesting and informative.

I thought I did perform above the 'satisfactory' level when there (as mentioned in OP about working on other projects across the firm - these wouldn't have been in my remit but I put my hand up to take them on - amongst other things) but clearly this view isn't shared. The 'satisfactory' grade is rarely used in the firm which makes this all the more insulting especially as I've been there for so long. Not that I am confusing loyalty with performance!

I can point to a few occasions when I went above and beyond - doesn't seem like they see this. In my appraisal call it was very much emphasised that it was a bit of a "non year" for me given my med leave and returning pregnant etc so no, they didn't say I was crap when I was there. There was no 'return to work' integration plan for me which in hindsight I'd have really appreciated as it was so difficult returning, knowing that the whole company knew I was off due to my mental health.

Btw the company is not winding down, just the practice I sit in - the firm is expanding in other areas. It was demotivating to come back to that working environment as it just felt that my job will die out when my boss leaves. I can't help but feel this result is a way to manage me out to make it easy and cheap for them in the long run.

Sounds as if you are feeling low (understandably) and letting that cloud your judgment.

You need to differentiate feeling from fact. You feel they might be trying to manage you out- a fact is that it is highly possible they don’t know what to do with you going forward as you’ve not been around much- and as I understand it you are still on mat leave. They don’t know if/ when you are planning to return, and what you will be up for then.

I don’t know how much more may leave you have left- if it’s a lot I would dry my eyes and get on with enjoying it. Bonus thing has happened and they haven’t been outrageous given what you have said. Besides which it is done- crying over spilt milk isn’t going to change it.

If you are towards the end of mat leave then start thinking about what you want out of it (do you want to go back- if so when- to what sort of role/ part of business?) and send some clear signals to them- e.g I can’t wait to be back in January and get back to being a great contributor, perhaps picking project x back up.

To clarify, they cannot penalise you for your maternity absence but (unless you are classed as disabled) they can take into consideration your sickness absence. How long were you off sick?

If you wanted to take it further, do you think they could justify the satisfactory rating? On the information given it sounds like they could. You had time off sick, given all you went through last year you wouldn't have been at your best prior to that, and afterwards it took you some time to settle back in, by which point you were heading towards maternity (which in itself is not a factor, but the limited time to prove yourself is).

I don't think they're trying to push you out, but more say that you've had a duff year (and understandably so).

Apologies, you said you were off for ten weeks. That's nearby a quarter of the working year gone.

(And I'm not suggesting you shouldn't have taken it, but that it would inevitably affect your performance review.)

Thank you. In response to my lack of clarity around my mat leave - it only started a month ago and I've planned to take a full year. Husband very keen for me to quit as he doesn't feel the stress of the role is worth it.

I've confided in an ex-colleague all the above and she is raging - she's actually in there covering my mat leave (as a contractor as she left 1.5 years ago). She felt they did not value loyalty which eventually pushed her out of the company - she's a very hard worker and was a huge asset to the firm so please note I am not saying loyalty = performance bonus.

Yes i am truly gutted at my appraisal result as I did work hard but it's been completely dismissed - I may as well have done the bare minimum as would have yielded the same result.

I hate crying and feeling so disappointed about this when I have a beautiful little girl sleeping on my chest as I type. It's not about the money, as the company bonus was higher than usual, it's about feeling completely not valued.

Sorry I'm totally drip feeding but realised I haven't said I don't expect a full year's worth of p. bonus, but rather to be judged on when I was actually there.

Our financial year runs from Sept so I've not been on mat leave at all in the year I'm being appraised on (mat leave started mid sept when my baby popped out 5 weeks early). Only the medical leave was in that year.

So you were there for all but 10 weeks? That is enough time to judge your performance.

How do you think you performed? If I'm honest it sounds like they've tried to find a polite way of saying that you didn't perform really up to scratch but given your difficulties with mental health and then the fact you were pregnant for much of the year and therefore knew you didn't have long, they're going to say they can't really judge.

Either that or because they're planning on phasing out your area (I presume that potentially means redundancy for you?) they're not treating you well as they're not that bothered about loyalty from you.

Yup @Gingerrogered I think a few of the PPs here are not familiar with the law in these regards.

OP, give ACAS a call for advice. It's a free service. They can give you the lowdown on whether you have a discrimination case or not.

How do they measure your performance OP?
So you have specific objectives that are formalised in writing? Did you meet these?