How not to hold a performance review
If anybody asks you to a 'catch up' meeting, be wary! It's no surprise this employee succeeded in his claim for constructive unfair dismissal.
How not to hold a performance review
In the case of R Rawlings v ProCam CP Limited, Mr Rawlings an advisor to farmers and a mentor for his employer, ProCam, was invited to a meeting to ‘Catch up’ with the Head of HR and Managing Director.
Unbeknown to Mr Rawlings the company, in particular the MD, were not satisfied with his performance. He was paid a salary of £65k plus a bonus and the MD believed he was ‘way overpaid’.
On learning of the catch up meeting he asked, ‘Is there anything specific that I need to prepare for ahead of the meeting?’ The response was, ‘Nothing to prepare, see you on the 15th’. (BIG MISTAKE)
Mr Rawlings duly attended the meeting. He wasn’t aware that a report previously prepared for shareholders had described him as a ‘marginal performer’. His figures were down and this was reflected in his annual bonus shrinking year on year.
Mr Rawlings felt he had been ‘ambushed’ by what was effectively a performance review in respect of which he had been given no notice and in the course of which it was inferred that he was not doing his job.
The following day he received a letter setting out a number of proposals which potentially reduced his responsibilities and his income by 25%. In his own words he was horrified. He was asked to sign and return a copy of the letter as confirmation he accepted the proposals. (ANOTHER MISTAKE). The company contacted him a number of times thereafter to ask whether he had signed the letter. He had not and had no intention of doing so.
To cut to the chase, Mr Rawlings resigned and claimed constructive dismissal. In his resignation letter he said,
‘I feel that I am left with no choice but to resign in light of your decision to unilaterally change my terms and conditions and to reduce my salary and responsibilities with effect from 1 August...I also consider your conduct to amount to a breach of mutual trust and confidence.’
Comment
It’s not surprising he succeeded in his claim. The employer should have, at the very least, provided him with full details of any shortcomings (including any documentary evidence) prior to the meeting in order that he could fully prepare. As he said in evidence, he felt he was ambushed and it would be very hard to disagree with that position.
The letter provided shortly afterwards and the attempts to chase up his acceptance more or less sealed his fate. This was simply not the way to go about a performance review. Employers should be open, honest and transparent. If there are performance issues the employee should be given time to improve, access to training or additional assistance at the very least. Unilaterally removing responsibilities which result in a reduction in pay will always lead to conflict.
The company needs a Performance Management Policy!
Banker sacked after sexual chat with teen recruit cried age discrimination.
Banker, Tarique Elimlahi, sued for age discrimination after he was disciplined for sending creepy sex messages to a young woman he gave a job to. See Gloucestershire Live and the full reasons for the tribunal decision. He ultimately failed in his claim.
Comment
An interesting point to note, which reinforces comments I made in an earlier newsletter - Winning isn’t everything, is that the tribunal held that even if the dismissal had been procedurally unfair he would probably not have received any compensation.
‘For completeness we should add that, had we found that the Claimant was dismissed and that his dismissal was procedurally unfair, we would have gone on to find that the reason for it was his conduct and that, for the reasons given by Ms Connolly, it was in its substance the fair consequence of very serious misconduct by him. Accordingly, any compensation would have been reduced to nil or to a nugatory award.’
Thousands of drivers delivering for Amazon could be entitled to an average of £10,500 compensation for each year they have delivered for the company, according to law firm Leigh Day.
The law firm has launched an employee rights claim on behalf of drivers and believes that Amazon could owe drivers a total £140m in compensation. They believe that at least 3,000 drivers could be able to claim for employee rights. If you’re an Amazon driver here’s the place to start your claim.
Comment
This is yet another proposed class action where gig economy workers are disputing their employment status. We’ve had the Pimlico Plumbers, Uber drivers and Addison Lee to name but a few. Now it’s Amazon’s turn. I note also that property firm Purple Bricks could be facing a class action over the status of their Local Property Agents, who they claim are also self employed.
These are fertile times for employment lawyers and will remain so until the distinction between self-employed, worker and employee is finally resolved. Being classed as a worker or employee confers significant benefits such as the right to minimum wage, holiday and sick pay, so companies will fight tooth and nail to avoid those labels. It’s financially in their interests for their ‘partners’ to be self employed.
The Employment Bill is currently in its early stages of passage through Parliament. If it passes in its current form the definition of worker as set out in section 230 of the Employment Rights Act 1996, will be amended to a more simplistic version:
“230 Workers, employees etc.
(1) There shall be a single employment status for workers and employees for the purpose of employment rights and employer responsibilities
in the workplace.
It also simplifies the definition of employer:
(4) In this Act a person is an “employer” if he or she engages another person to provide labour, whether directly or through another person,
and the person providing the labour is not genuinely operating a business on his or her own account.
This is more straightforward than the current definitions as set out in section 230, in particular section 230(3)(b) which is what much of the current litigation is based upon.
Quick answer to a TikTok question which has just come in as I’m writing!
Q Do you still accrue holiday whilst on furlough? Our employer sent out a letter at the start of furlough to say that holiday was not accruing on furlough!
A Yes, yes, yes!
I’ve had a number of questions on similar lines. Holiday accrues whilst the employee is employed and furlough is still classed as employment. Don’t delay, get on to your employer. You only have a limited time to make a claim if he/she won’t pay.