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)

Don't fixate on the sex discrimination/maternity discrimination. Have a long, hard look at what they're saying about your performance and consider if there might be any truth in that.

@Giulia123 you're not doing yourself any favours on this thread by not disclosing everything that is/could be pertinent, and I wonder if this reflects how you are in the workplace? Could they, actually, have grounds for wanting to discipline you? You seem very certain that they can't, but is that actually true?

At the moment they are not managing you out nor have they just told you to leave. They’ve had a settlement meeting with you, and offered you a package to leave. They are allowed to do that. You left out the settlement offer from your OP to make it sound like they just asked you to go, they didn’t.

You can negotiator on the settlement or refuse and be put onto a PIP. That is when they will manage you out over the next few months. So really think about what you can negotiate and consider taking the settlement plus a good reference. Do you really want to keep working there?

Question you haven't answered as pp have asked:

1. are you on 4 days a week part time with a reduction of pay (compared to previous full time)?

Or

2. have you requested flexible working, meaning full time (5 days) condensed into 4 working days? And therefore same pay as previous with same responsibilities.

As response will be different.
Option 1) it does seem strange for them to go into settlements and offer you something out of the blue if you've been doing everything as normal.

Option 2) your productivity has dropped or you cannot fullfil role on a 4 day week and hence job is being completed to a suitable level. If so- the situation makes more sense.

But please do clarify?

*not completed to a suitable level

Call ACAS they will advise you best.

They cannot ask you to resign, they have to sack you. They don't want to sack you probably cos they're on shaky grounds, but then they don't need grounds to sack you, they can just do it and if you want to challenge this, you would need to (on balance of probability) prove at a tribunal that it was unfair dismissal. If you win, a tribunal can only pay you what you have lost ie they don't get punished. If its sex discrimination, the amount awarded is unlimited.

Don't leave, don't resign engage a lawyer - your household insurance will cover the legal fees.

Have you spoken to pregnant then screwed for free advice?

What does your capability or performance policy state? You need to look at that (and any solicitor will expect it). Also email whoever you had the meeting with and ask for the minutes.

it wasn’t a protected conversation unless they or you asked specifically for it. Protected conversations are specifically for having open conversations whereby the information cannot be used if it goes to tribunal. Both sides have to agree to such a meeting.

as you have been there for more than 2 years you do have your employment rights. So they can’t just sack you. Of course any organisation can manage you out and make it look legitimate, it happens all the time. If there is a clear link between coming back and being a mother and this process then you can claim discrimination but you have to have evidence, it’s not a case if you ‘think’ it is linked. They could have said no to 4 days and you should stop working the 5th day.

have you notes of 1:2:1’s (do you have them regularly)? Any capability is against your JD or any implicit changes that have been made over time (so if you started doing something additional lot in your contract it is implied that you accept doing that).

tribunals are hideous and if you were in a union they only take these cases through if it is really clear you will win. Have a look at ACAS’s website yourself as it will have helpful information.

but it is important to get what they said to you in writing and the capability policy. They cannot force you to resign but if they have. Policy they need to follow it or at least the law relating to dismissal.

settlements happen everyday. Figure out what you would get if you were made redundant plus notice period and this is generally what would be deemed a reasonable amount, unless they have clearly behaved badly, but even then there are formulas to calculate payouts.

for the future John a union as they would have probably felt with this informally where they could.

also start looking for another job because if they want you out they will make you life difficult

Just to add to other advice, make sure you get copies of all the relevant policies - redundancy, performance management, absence management, family leave - as well as your contract. Sharing these with anyone you contact for advice will save time

I would start by looking at the company policy and if they are following it.

Start documenting everything.

I do know 2 people who were 'managed out' of the same corporate company - they agreed a severance payment of £40k.
Both decided to take it. That's as much as the company would pay without involving lawyers.

I would definitely talk to a lawyer or an HR consultant

I think it would be good for you to decide what you want out of this. Do you actually want to stay working at the company or do you want to get the best severance that you can?

I would be amazed if you’re entitled to sick pay for dependants. It’s a completely different leave entitlement.

That’s not the case. For direct sex discrimination you must always have a male comparator but it can be a hypothetical comparator if you don’t have one

As a woman returning to work following mat leave you have lots and lots of rights.

Well done for standing your ground.

Pregnant then screwed
Working families
Women careers

Are all organisations extremely experienced in your situation.

ACAS are great but offer one liner answers so keep phoning them and remember they are there for you.

Unions used to be for the employee but they're often paid out by the employer so keep an open mind.

Never ever trust your HR department or occupational health as an employee.

I have experience of an employer attempting to manage me out after I made a complaint about discrimination. i raised a tribunal action and settled in the end as most do.

in order to lawfully dismiss you for grounds of competence (ie performance) an employer must demonstrate that is actually why they are dismissing you and that they have acted “reasonably”. This usually means a performance plan with a period of time for you to meet it.

however it’s not as simple as that as performance is often subjective. It’s hard for an employee to demonstrate that the employer has not dismissed them due to performance unless there is a glaring alternative reason that you can prove. a tribunal won’t investigate whether your performance was actually good or bad, just whether or not that was why the employer dismissed you.

For example, if you allege sex discrimination, you must have a male comparator and actual evidence that you have been differently treated and this was the reason for your dismissal. Simply that you think that they were reluctant to allow you to work four days would not be sufficient.

if I were you, I would take legal advice. If you can easily get another job consider doing so and negotiating a settlement. Often (not always of course) when an employer has decided that you need to leave, it can just make it worse trying to stay.

Bit of a drip feed on the fact that you were offered a settlement and you still haven't answered on why they "had" to agree to 4 days.

thanks so much again for the advice its really appreciated and I never expected so many people to offer it! I’ve never posted on here before so sorry to everyone pulling me up on etiquette!

Sorry OP if they've waited 6 months then they've been very sneaky. You're protected against maternity discrimination for 26 weeks from when you returned to work. You may still have grounds for claiming sex discrimination. Speak to ACAS as soon as you can.
https://www.equalityhumanrights.com/equality/equality-act-2010/your-rights-under-equality-act-2010/pregnancy-and-maternity

Whatever you do, don't resign.

You won't have a leg to stand on, financially or legally.

If you need to claim benefits, you wouldn't be able to, as you chose to leave.

Whilst parenthood isn't protected, the fact that it is mostly women like @Giulia123 who are confronted with such shabby treatment as to be effectively dismissed but without going through formal employment processes, can equate to indirect discrimination. Men don't get treated like that in the main.

@Giulia123 they're playing cat and mouse with you, telling you that they want you out, but not clearly stating on what basis (apart from their arbitrary poor performance comment, but no PIP, no substantial evidence etc), and not clarifying what offer they're putting on the table but referring to your meeting as a protected conversation. Have your annual reviews been good, or any points of concern flagged up?

ACAS can give you some clarity in how they should be handling this situation according to good practice, then you can decide whether to take it to an employment solicitor. Document everything, retrospectively from their meeting and going forward. Ask ACAS whether submitting a grievance might enable you to put your side of the situation forward formally, as part of your documentation.

Yes that's correct with direct sex discrimination (which isnt what I was talking about though)

Never ever trust your HR department or occupational health as an employee.

🙄

Where does it say this? I can only see you are protected until 26 weeks after birth, unless I have misread!

This is a totally different situation but last year I managed someone out through the probation and performance management process. This person had embellished their CV and said they were capable of technical tasks that they clearly were not able to do when they joined.
We offered the individual the opportunity to resign in advance of the process so that they could then have their full notice period and also it would be on file that they resigned rather than were terminated due to poor performance. We also offered them the opportunity to redeploy to a more junior role to learn the technical skills they lacked.
They refused and were then terminated. It was a shame really as they'd just come in a too senior a level and now any reference they have from us will have that on record.
Just to say really that sometimes the offer to resign can be done with decent intent.

It's hard for anyone to govern advice when you've given a broken half story in dribs and drabs.

Give advice*

Indeed. The non-answers to important questions is very telling.