Take demotion offered, challenge process, resign - what would you do?

[PurplePenguin314]

DP unexpectedly had a protected conversation at work with his line manager - no advance warning this was going to happen. He had been put on an informal support plan and all of the targets were met, which his line manager acknowledged. Despite this, DP has been told he can either face capability or accept a much more junior role. DP feels he has been treated unfairly.

Would you challenge the process if you felt you were being treated unfairly, but risk losing your job altogether and have to declare capability proceedings in future job applications? Or would you take demotion or resign?

Finding a new job won't be easy for DP, as there aren't many at the same level round where we live.

If you've experienced capability proceedings at work, what was the outcome and have you had success in finding a new job?

Were the targets not met though?
Is he struggling at work?

Payment in lieu of notice, if he goes through the PIP and fails at the end, we would pay out everything in lieu. 3 months notice, pension contributions, car allowance, private medical etc. it would depend how much his notice is.

What his proposing is wack. A real protected conversation would involve a settlement agreement with a reference agreed. Also the company would pay for his lawyer fees as he would seek advice/negotiations

You need to speak with ACAS and consult an employment solicitor (first consultation is always free). Tell your DH to document everything, dates, conversations, outcomes etc. if he has anything in writing, tell him to forward it to his personal email address or copy-paste in a document. The solicitor will be able to give the best advice for your situation. A demotion after 8 years in a role with no progression is hard to recover from professionally, if he does manage to reach a settlement, he can negotiate his references as part of his settlement and NDA. Depending on what the solicitors advise, after 8 years in a business, a settlement can be quite substantial if proper procedure was not followed. Speak with a solicitor ASAP.

Take the demotion, and either enjoy the better work-life balance, or look for another job while coasting.
Meeting targets is a paper exercise and worth nothing really.
Fighting isn’t worth it, unless you are in a profession that is very much in demand, or want to retire anyway. you end up with a lot of stress, loose your job and get a settlement that will only cover a couple of months. And finding a new job in the current climate isn’t fun.

Regarding the demotion, and new jobs: he always met targets, so needs to argue the demotion was due to structural changes/new management. Happens all the time.

OP I think people on here advising to accept the step back in role/demotion may not be understanding the consequences. Eight years in one setting in this role (is surely evidence he can do the role unless there’s been huge recent change in performance or his capacity). In combination with a new line manager and what sounds like incorrect HR processes followed. Your DH may be in a more secure position than he thinks. Please do speak with ACAS - they offered me fantastic support when I was on the receiving end of maternity discrimination (didn’t have to go legal and mediation got me an outcome I was happy with/secured my future carer).

Thank you for the advice. Agree that it's unlikely DP can recover from this professionally. What sort of thing might you expect in an NDA in a case like this?

He shouldn’t speak to a solicitor until he hears back from the union. That might mean the union can’t help.

He should chase the union if they don’t get back to him quickly.

DP spoke with his union rep today, who said he didn't think it counted as a protected conversation. And, like you said, just because they say it is a protected conversation, doesn't make it one.

yes - you should be invited to a protected conversation. It shouldn’t be sprung on you, although if the conversation was going well HR could say “would you like to have a protected conversation now?”.
The protected conversation should be between DP and whoever is representing the business. I’m sure you know this, but it’s protected because neither party can use what’s discussed in any future appeals or grievances.
an informal support plan isn’t a PIP - if he had not progressed on the informal plan he should have been informed that it was progressing to a PIP.

i think he needs to speak with a Union, potentially seek legal advice and consult ACAS. He shouldn’t agree to or sign anything from work right now.
i agree with other PPs that it seems as if the business wants him out (for cost reasons I suspect as they are trying to demote him), but that plays to him because if they really do want him out they’ll pay.

Also in a reference they only give out job title and salary! Nothing else will be given so his career is not screwed! As HR put it to me maybe you’re fave doesn’t fit in hat establishment now (like a round peg in a square hole). It often seems much worse when you are in it but it’s just work!

Glad DP is speaking to union rep. Basically they haven't followed a correct process at all.
He should downed the policies , there will.be one about capability. Typically the process is informal capability PIP and followed by formal PIP if the informal one hasn't worked. DP should be made clear through the letters/documentation of the potential outcomes of the PIP. So this should all be documented.
They are trying to bypass the process by offering this so called protected conversation which means if he accepts the demotes job then he will have been deemed to do so voluntarily.

He should be asking for a meeting with HR with union rep in attendance. He needs to bring along his documentation and the policy and ask what process they are following and where it is in writing the potential outcomes of the informal.PIP and why, if he has met targets, he is deemed to have failed the informal PIP. I'd not go via the line manager who clearly isn't following due process.

@PurplePenguin314 there’s lots of good advice here that I won’t repeat but one thing in your op stood out to me:
“Would you challenge the process if you felt you were being treated unfairly, but risk losing your job altogether and have to declare capability proceedings in future job applications?

Your DH would not have to declare capability proceedings. And if his current employer made reference to these in a reference, this could well be actionable- and therefore highly unlikely to happen. So thus fear should not deter him from doing what he needs to do.

To be clear - if your DH is dismissed he will have to declare this. But anything else is an internal matter. Indeed he could also take the demotion and tell future employers he decided to take a step back in his career for e.g. work life balance.

I think even if DP manages to get work to now follow due process, they will 'get him' one way or another. They could give him a formal PIP, say he failed, then dismiss him.

Do you think it's possible to negotiate a settlement/new junior role solely through HR and not the line manager?

OK, I see. But if DP applies for jobs while going through capability, would he have to declare the ongoing capability proceedings? DP's line manager has said that they would have to make the potential employer aware of capability proceedings, but I'm not sure if he meant while they're ongoing or forever more.

Thank you to everyone's advice so far. It's all been so helpful.

During the so-called protected conversation, DP was given 5 days to give his line manager an answer - take demotion or face capability. So now DP has to argue that the conversation doesn't count as a protected conversation and also ask for more time to come to a decision. DP's also asked for his union rep to come to a meeting.

At this point I would consider raising a grievance about the line manager. He has no clue about employment law it seems.

No. There’s nothing to declare.

Thats incorrect. Your DHs employer has no right to share internal proceedings with external parties.And they could be liable for any financial consequences that arise from this disclosure.

To be clear. My ‘that’s incorrect’ refers to what the boss is claiming.

@Sc00byDont That's good news. Do you know where I can find something concrete that says DP's line manager cannot disclose internal proceedings in order to rebute DP's line manager's threat? (As, DP can't say "you can't do this because Scoobydon't on Mumsnet says so!)

Be very, very careful with what the union proposes if you DH is working for a big company (big multinational).
I’ve seen a lot of people following union advice, and all they got was a couple of month severance- and long-ish term unemployment.
People taking the demotion and looking for a new job while coasting tend to do much better.
if you don’t need his salary and/or he’s in a high demand job, fighting it makes sense. Otherwise- avoid.

Speak to ACAS. It is a complex area of law but what you have said here would not constitute anything that your DHs employer is obliged to disclose to potential future employers and choosing to make a disclosure would be a risk to them. If your DH is concerned, he might formally raise his concern that his disability has not been taken into account. This could mean the threshold for disclosure would be even higher. But it is a complex area and I suggest consulting both acas and an employment lawyer with the specifics of his case before he does anything else.

Can I add that DP should now ask that all further discussions go via HR and NOT his line manager - I’m amazed that HR have big been involved! I would suggest he speaks with them directly.

Employers must legally give references that are true, accurate, fair and not misleading. They must also follow GDPR. In theory, they could mention a PiP, but only if there is a valid reason for doing so and not on any malicious grounds. Most employers will only give references that confirm that the employee worked for them from date to date, their job title and potentially whether they were under any disciplinary proceedings at the time of departure or were dismissed (this is NOT what a PiP is). They do this to avoid legal action by any former employee.
I agree with PP that DP’s line manager does not understand employment regulations and/or is trying to scare DP into accepting demotion. It is VERY unlikely his organisation would risk potential legal action by informing a future employer of any PiP.
If he negotiates a settlement with HR, he should also stipulate that he needs the organisation to mark him as a ‘good leaver’ I.e. they will not mention anything about performance etc.

edited for typos

Should read that HR haven’t been involved!