Asked to Leave

[Giulia123]

Hi I have effectively been asked to leave my corporate job after 6 years of service. They are trying to put this down to poor performance however the arguments they are using are arbitrary and I am confident I have a good case to rebute this. I have not been back at work long after mat leave (6.5 months) and have been working 4 days a week since I have been back. They didn’t want to agree to the 4 day week but think they knew they had to. Does anyone know what my options are? Am I able to fight this or now that they have asked for me to effectively resign can they force me to leave? My understanding is that I would have to be given a formal warning and put on an improvement plan before they could actually dismiss be legally. Is that right? Has anyone had any experience of this? I think it would be easy for me to pass any test as I am good at my job. I fear that this is personality related and also that they don’t want a working mum on the team (I’ve had to take some time off due to childcare)

I think I would be forking out £££ and consulting a specialist employment lawyer before doing anything else other than summarising the meeting by email and starting a paper trail.

IANAL, as I understand it the only way it could be classed as discrimination is if they would treat a male who had done the same differently to you. Being a parent is not a protected characteristic.

They didn’t have to agree to 4 days and as pp said, you shouldn’t be calling in sick unless it’s you that’s sick. Some places would class that as gross misconduct.

I agree with @devildeepbluesea .

They are right that your previous Job can’t be done in 4 days; they are supposed to reduce the workload to make it possible to do in 4 days! Did that happen? No wonder you are not performing if it didn’t.

They are allowed to say No to flexible working/ part time hours if this is not suitable for the business. A lot of private companies struggle with this because their full time employees are working unpaid overtime - so the culture doesn’t easily withstand someone who is not seen to “go the extra mile”.

When your dc is sick you either need to take unpaid leave or holiday - you can’t use your own sick leave unless you are also sick. Also I’d expect dc’s father is doing his share of missing work to look after sick baby.

It really sounds like a terrible workplace. I question why you want to stay there, aside from the four day week … unless you’re hoping to get pregnant again soon j would probably start job hunting.

Save your money and call ACAS tomorrow, they are damn good.
When you have done that, if you have a mo, let me know how things went and I may be able to tell you what to do next

Usually that's correct, the op would have to prove the employer would treat a male in the same situation more favorably for it to be discrimination.

When it comes to maternity/mothers/part time working its generally accepted that women do more caring than males, so if an employer treats a pt female worker unfairly because she works part time, and has had time off for caring, the female doesn't necessarily need a male comparator. Because it's unlikely there will be one.

Worth pointing out the part time worker protections also apply to men. They are also protected from unfair treatment.

As you’ve been there over 2 years, their options are:

1. Make your role redundant, and therefore you’d be entitled to redundancy payout. They would have to tread very carefully about re-employing for your tasks
2. Put you on a performance plan and manage you out of the business by proving you’re not performing
3. Fire you for gross misconduct, which it sounds like they don’t have grounds to do
4. Offer you a package to leave, which you both have to accept

They can’t, after 6 years of employment, just ask you to leave.

Sounds like there giving you the heads up before they start the performance procedure

if your performance is poor then you should be placed on a pip
which should clearly highlight the areas you are under performing in
then a plan with support and measures to review it

they really didn’t have to give you 4 days

Yes this exactly.

OP you need to get you head on straight for this.

Take minutes of every meeting yourself or ask for someone to attend with you who can.

Phone ACAS for initial support.

Context whoever you has the meeting with .. manager and HR Rep? And ask them to clarify the conversation in writing as you're not sure you understood what they were asking you to do or why.

You need to force them to be black and white with you, and you need to let them know that you won't just accept it and do as you're told.

Feel free to tell them you have contacted ACAS also so they know you are getting advice.

A handful of times I have taken sick or holiday to cover childcare when my daughter has been unwell.

I can't advise on legal aspects but this may well be being used against you as well as the 4 day week. They just don't feel you're present enough at work.
How many times is this is you've had to take off only been back 6 months?
Is the baby's dad taking a share of time off to cover DD being unwell?

Two options OP.
Fight it ... force their hand and ask them to document any supposed improvements and go through the process. They'll struggle to demonstrate to a ET satisfaction that they've made reasonable adjustments for part time mat returner in such a short time to identify performance problems and manage you out. So you'll have a decent chance to fight this and retain your job.
Negotiate terms of departure. They don't want you, who cares the reasons. It's soulless working for a company that don't want you there and you could be far happier and more successful elsewhere. Make them pay for it. So don't just hand-in your notice but ask for a package to leave which will give you plenty of cash buffer to find another better job

If your employer has asked that you resign in an open (non protected) conversation, you could have grounds for a constructive dismissal claim. It’s a pretty fundamental breach of trust and confidence to tell an employee you no longer want them there!

A conversation is only protected if it is for the purpose of exploring a settlement. It also can’t be a “without prejudice” chat unless there is an existing dispute in place, and it doesn’t sound like there is. So on the basis that it was likely that the conversation was entirely open, I’d suggest raising a formal grievance about the fact that you’ve been asked to leave your job.

In terms of discrimination, you’d have to show you’re being treated less favourably because of your caring responsibilities (or that you’ve suffered a detriment as a result of asserting your right to statutory dependent leave). It could be worth adding to the grievance if you feel this is genuinely the reason they’ve asked you to resign.

I would also add that if there are genuine performance issues, they’d have to performance manage you over 3-6 months with a series of warnings and measurable targets etc before they could dismiss you. And you’d still get 6 weeks notice on top (or more if it’s in your contract).

So on the basis of the above, I suspect they probably will look to offer a settlement agreement at some point as they don’t want you there and they won’t want a potential discrimination claim!

Are you a lawyer @DistinguishedSocialCommentator?

They can't just throw past things at op now. They'd have to be specific about what the concerns are and address those, not just "Oh and yes you also had 4 days off for a dependent"

If that was an issue they'd need to be able to demonstrate they have already raised a concern at the time. (Guessing they didn't op?)

You have been there more than 2 years so they need to do 1 of 2 things.

1 - make your role redundant/offer you voluntary redundancy
2 - follow their performance management/disciplinary process and fire you

They can't just ask you to quit, well the y can ask but they can't force you to.

tHank you all for being so kind as to reply with such helpful responses. I’ll speak to a lawyer tomorrow and ACAS before formulating my written response

on reasonable adjustment for a part time worker - they have made absolutely zero adjustments and I’ve most weeks had to work on my day off. I feel that they’ve effectively hung me out to dry since my return and have the feeling they have wanted me out since I fell pregnant and they’ve waited until now to do it.

I am just not sure if I have a case where they will have been careful to document minor justifications for poor performance. it won’t be for taking leave for my daughter being unwell as i have a am entitled to sick pay for dependents

Please speak to ACAS and get an employment lawyer asap. I can recommend one enough. Stay strong!

@Giulia123 I'm a little confused about the 4 day thing; you say that the company are saying you can't do the job you previously did in 4 days, which is correct. If you were full time and now reduced to 4, there would be a problem if you could continue to get all your work done to the same standard. It would indicate that you were underemployed previously.

So, what's the arrangement? Has your workload (and pay) been reduced proportionately to your hours? Or are you being paid at the same rate and are trying to condense your work into a whole day less?

And the childcare issues... you should not be calling in sick if it's to provide care for your ill child. You need to be honest. How many times has it been? Are you sharing time off with the child's dad?

Also sorry to pregnant then screwed, you'll get some great support from them.

Op it doesn't matter if they have a dissertation sized document of concerns if they haven't addressed them formally with you.

And there is no requirement for reasonable adjustments for pt working. They just need to ensure they are not overloading you, or any employee. If you have had to work on your non working day then they may well be, but it goes both ways, if you have never raised this with them as a concern then they have had no fair opportunity to resolve it.

There nothing decent about what they're doing here.

@Megifer when you say formally do you mean as a written warning ? As far as I’m aware I haven’t had any warning

You shouldn't be unsure about what is happening, so the company need to clarify everything

Definitely get legal advice and ring ACAS

They can’t say your shit go faster
if there is an issue they have to highlight it to you
this is where pips come in

the identify the area of concern offer the relative support to get you up to speed by ether training or mentoring
there’s a review date with a means of measuring your performance/improment

they can’t just sack you without supporting you in trying to improve

Warning or capability process.

Warnings in the first instance are usually for wilful/won't do e.g. lateness, not following process etc
Capability is "can't do" e.g. sickness (sometimes), making errors (can also be wilful, it depends)

Capability usually leads to a pip which can then lead to a warning. Some companies don't have a policy on this though.

Either way it needs to be formalised - raised as a concern in a formal meeting, time frames agreed for improvement etc - for them to be able to rely on it for dismissal purposes.

It doesn't need to be formalised for a protected conversation (different name for it then, same thing though) but to have ehat sounds like a flaky protected conversation with a part time female worker 6m after mat leave, where they have made it clear they don't like you being part time, is quite mad and makes me think their hr department have been sniffing the sharpies or a manager has gone rogue.