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Advice wanted - Termination of Probation period - appeal?
Stefficook
Posts: 18 Forumite
I'll keep this as brief as possible but I am seeking advice on behalf of husband regarding his right to appeal a decision to terminate his probation, based on performance issues which he has evidence are not true, and no procedure followed by the employer - please read on if you may be able to help.
Feb 2013 - Husband - S - employed by Town Council as a Sport Development Officer on 3 month probation. His contract is with the Council but the post is funded by the Football Association and Football Foundation, therefore he has the Town Clerk as a manager, and an FA manager.
On starting the role, he had very little management and struggled to get into the role. This was noted and his probation extended from May 2013 until August.
S has steering group meetings with FA manager, clerk and mayor (who is also head of PE at the local school) where they discuss what he has been doing and what he needs to do next. This happened in May, where the decision was made to extend probation and agreed by all.
Next meeting was in July, then one in August, where they again decided to extend his probation based on some aspects of performance. At this meeting, they agreed on a list of 8 points which they wanted him to action prior to the September meeting. He agreed to do this. They also made up a spreadsheet of AM, PM and EVENING for each weekday and asked him to complete this each week to show what he was doing and the time spent on each part.
During this time he mentioned to me a lot that he felt no matter how hard he worked they were not satisfied, this now seems justified.
Probation was now due to end on 4th december, with someone from the Football Foundation assessing his work and deciding whether he had met the job role and therefore could be placed on a permanent contract.
A couple of weeks ago, Clerk approached him close to him leaving for a commitment and stated that he had not submitted the requested worksheet for 4 weeks - this hadn't been raised during those 4 weeks. S said they would take a while and he had to leave in 20 mins - clerk stated he needed them that night. S copied his diary onto them as obviously time was short. The meetings which I mention below were in his diary and therefore copied onto the worksheets.
Clerk approached him at work the following day and asked him to come with him to a meeting room. They usually had a catch up every so often so he thought nothing of it until he entered a room where the Asst. Clerk was ready to take notes, and mileage claim docs were highlighted along with the worksheets he completed the previous day. Clerk asked him if he knew why he had them out. S replied he didn't know. Clerk pointed out 3 journeys which S hadn't actually made but had claimed for. These 3 journeys relate to mtgs he hadn't attended, but as above, had put on the worksheets (completed in a rush).
S confirmed he hadn't been to meeting, was error on the form as he filled it out each month at the start then altered it before submission but had obviously missed those dates and apologised profusely. The money had already been reclaimed from his wages without him noticing.
Clerk stated that this was potential misconduct and that a Personnel Mtg was being held a few days later which would decide whether it was misconduct or not, whether to suspend on full pay, or use as evidence of poor ongoing performance and end his probation. Clerk advised S write a letter explaining his side of the story for the Personnel Committee to consider.
We prepared a letter explaining what had happened.
In the meantime, Clerk called him at home and said he should resign as it "wasn't looking good" and stated "if you were doing excellently this wouldn't really be an issue".
On Monday 2 weeks ago, S and Clerk had another mtg where S asked him a few questions and took some notes. Clerk refused to sign. He asked whether anything other than these false claims was being discussed at the Personnel mtg - clerk stated No.
On the monday night the mtg was held and on going to work on Tuesday, S was told that the committee accepted that his forms had been submitted in error and not dishonestly. Good news! But...they are terminating his contract based on ongoing poor performance with a weeks pay in lieu.
The letter stated 6 points of ongoing performance to justify the termination.
1 - Poor spelling despite being mentioned to him numerous times.
2 - Claiming mileage for meetings he hadn't attended (as per the initial investigation)
3 - Failure to attend meetings with FA manager with no good reason
4 - Failure to submit work sheet each week as agreed at Steering Group meeting
5 - Misunderstanding and misinterpretation of the August Action Plan - ie failure to implement a program called Football Futures as requested by the Mayor
6 - Failure to research or understand Charter Mark Programme which is a key part of the role.
He was asked to leave immediately. He asked the clerk how he can appeal, Clerk stated he has no right to appeal decision.
We spoke with a union rep who suggested we send a letter to declare intention to appeal the decision based on evidence of these points being untrue and therefore his performance not failing to a standard worthy of dismissal, and failure to adhere to their contract which stated the procedure for dismissal/discipline.
We wrote a letter and detailed arguments against each of the 5 points...
1 - admits he isn't the best of spellers, however has made efforts to make sure documents are accurate. Is spelling a reason for dismissal?
2 - The committee accepted that this was due to human error rather than dishonesty, and believe that this could be dealt with reasonably by giving clear instruction on completing them and monitoring for certain amount of time.
3 - S missed one monthly one to one meeting with the FA manager. This was because the FA manager sent through outlook an invitation with the date, however this was not received - it was not in S's calendar or diary and he discussed this with him at a later meeting when he stated that he didn't realise he'd missed one, because the invited didn't come through. Manager accepted this and emailed a full list of dates via invite - this was received in a format that couldn't be read, S emailed him to tell him, and he replied with a list of dates - no other meetings were missed. S can not access emails now due to the termination.
4 - Agreed that the work sheets weren't completed - first 2 weeks were, then 4 missed before it was brought to attention and as he was so busy implementing the programmes detailed on the Action Plan he felt that the priority was the work, rather than admin. (Noone asked him for them during those 4 weeks, which seems that they were perhaps taking an opportunity to prove his "incompetence?).
5 - The action plan consisted of 8 points - he states that 7 were met, and the one regarding Football Futures hadn't been met until then due to research that suggested it wouldn't work. He had presented that to the steering group and they had insisted on it being done the way they wanted, so he implemented this and it was due to start on the day they dismissed him. He had to cancel this following the termination but had provided an update to the steering group in Sept to raise his concerns, where they stated they still wished to implement it and he agreed that he would. He has had no further opportunity to report back on the progress as it was due to start that day.
6 - Finally, the "Programme" is actually the Charter Standard. In sept steering group, S provided a presentation on all of the clubs he had worked with to help them reach various points on the standard and therefore showed how his own understanding had developed in relation to this. Admits he had no prior knowledge of it but researched it when he was required and now is fully conversant.
Letter also stated that the position seems untenable and to settle on payment for the probation period (until Dec 4th) would be satisfactory.
We received a letter back this week which has left us slightly confused. They state as he was terminated on probation this is covered under the Staff Handbook and anyone not performing to standard can be terminated (we are not disputing that point, however their method and lack of any chance for him to put his side across re the performance, and the points themselves not being justified).
They state as it was not under the disciplinary procedure, right of appeal doesn't stand.
They then provide evidence - series of 4 emails from Clerk to S - highlighting spelling errors in S's emails previously and stating that S can ask him to proof read if necessary. (Ironically, Clerk's emails also contain spelling and grammatical errors).
The letter also claims that there have also been "complaints" from someone else at FA that he failed to attend meetings, and regarding his poor performance. There is no other mention of this either previously or in this letter, other than one email addressed to S stating his disappointment at him not attending one mtg, which S had given genuine apologies for and attending all following mtgs.
They attached the Action Plan - but have not acknowledged any of the other points - and also a copy of the blank work sheet for each week. They haven't acknowledged any of the points his appeal letter raised.
The letter ended stating he had been given contractual notice of one week with payment in lieu. There is no conclusion to it to state their intention or what they will/won't do.
Today he has asked for his P45 as he is at the job centre tomorrow and has yet to receive this. Clerk replied stating that he hasn't got it yet as he has to wait for the final pay, and needs to wait for the outcome of the appeal (which confuses us as the letter seems to state he has no appeal?), and if he wants his P45 for the one week's notice pay, this will mean that he revokes any appeal. The asst clerk also emailed back a few minutes later stating she was issuing this on Friday with his final paycheck - we haven't yet replied.
Having looked on their website, there is a policy document which includes dismissal/discipline policy. It states the Employment Act which covers ALL employees (no specific mention of probation), and the statutory procedure that must be followed to end someones employment:
That the allegations are put to the employee in writing
They are invited to a meeting to give their side of the story and can be accompanied
They must be informed of the right to appeal the decision.
I understand that as he has less than 1 year employment he is not in a position to claim unfair dismissal, however the policy document they have on their website states that not following the procedure in the policy allows for it to be Automatically Unfair, and negates the need for this minimum length of service.
Would like some advice please on where we may stand on:
1 - Does he have a right to appeal?
2 - Are they still obliged to follow a procedure even though it was a termination under his probation?
3 - How should we respond to this letter which doesn't really acknowledge any of the points he has raised - they seem to be ignoring anything that may support his performance.
4 - Can they withhold the P45 until appeal is sought, and if he gets the P45 I feel they are hoping to use this to state that he no longer wishes to appeal.
5 - Any general advice on how, if at all, we should proceed.
Sorry it was so long, if we felt that he hadn't been performing well at all then fair enough, we don't dispute they have the right to end the probation if someone isn't doing well, but it seems that all through his time there they have been out to find reasons to get rid of him - there has been quite a turbulent relationship (from their part, hubby is very laid back and friendly) and he has always felt that they are not happy with his work despite huge efforts on his part. He has also had nothing else ever raised to say that if he didn't do A,B,C he would be dismissed, or that FA managers had raised any concerns.
Thanks for reading
Feb 2013 - Husband - S - employed by Town Council as a Sport Development Officer on 3 month probation. His contract is with the Council but the post is funded by the Football Association and Football Foundation, therefore he has the Town Clerk as a manager, and an FA manager.
On starting the role, he had very little management and struggled to get into the role. This was noted and his probation extended from May 2013 until August.
S has steering group meetings with FA manager, clerk and mayor (who is also head of PE at the local school) where they discuss what he has been doing and what he needs to do next. This happened in May, where the decision was made to extend probation and agreed by all.
Next meeting was in July, then one in August, where they again decided to extend his probation based on some aspects of performance. At this meeting, they agreed on a list of 8 points which they wanted him to action prior to the September meeting. He agreed to do this. They also made up a spreadsheet of AM, PM and EVENING for each weekday and asked him to complete this each week to show what he was doing and the time spent on each part.
During this time he mentioned to me a lot that he felt no matter how hard he worked they were not satisfied, this now seems justified.
Probation was now due to end on 4th december, with someone from the Football Foundation assessing his work and deciding whether he had met the job role and therefore could be placed on a permanent contract.
A couple of weeks ago, Clerk approached him close to him leaving for a commitment and stated that he had not submitted the requested worksheet for 4 weeks - this hadn't been raised during those 4 weeks. S said they would take a while and he had to leave in 20 mins - clerk stated he needed them that night. S copied his diary onto them as obviously time was short. The meetings which I mention below were in his diary and therefore copied onto the worksheets.
Clerk approached him at work the following day and asked him to come with him to a meeting room. They usually had a catch up every so often so he thought nothing of it until he entered a room where the Asst. Clerk was ready to take notes, and mileage claim docs were highlighted along with the worksheets he completed the previous day. Clerk asked him if he knew why he had them out. S replied he didn't know. Clerk pointed out 3 journeys which S hadn't actually made but had claimed for. These 3 journeys relate to mtgs he hadn't attended, but as above, had put on the worksheets (completed in a rush).
S confirmed he hadn't been to meeting, was error on the form as he filled it out each month at the start then altered it before submission but had obviously missed those dates and apologised profusely. The money had already been reclaimed from his wages without him noticing.
Clerk stated that this was potential misconduct and that a Personnel Mtg was being held a few days later which would decide whether it was misconduct or not, whether to suspend on full pay, or use as evidence of poor ongoing performance and end his probation. Clerk advised S write a letter explaining his side of the story for the Personnel Committee to consider.
We prepared a letter explaining what had happened.
In the meantime, Clerk called him at home and said he should resign as it "wasn't looking good" and stated "if you were doing excellently this wouldn't really be an issue".
On Monday 2 weeks ago, S and Clerk had another mtg where S asked him a few questions and took some notes. Clerk refused to sign. He asked whether anything other than these false claims was being discussed at the Personnel mtg - clerk stated No.
On the monday night the mtg was held and on going to work on Tuesday, S was told that the committee accepted that his forms had been submitted in error and not dishonestly. Good news! But...they are terminating his contract based on ongoing poor performance with a weeks pay in lieu.
The letter stated 6 points of ongoing performance to justify the termination.
1 - Poor spelling despite being mentioned to him numerous times.
2 - Claiming mileage for meetings he hadn't attended (as per the initial investigation)
3 - Failure to attend meetings with FA manager with no good reason
4 - Failure to submit work sheet each week as agreed at Steering Group meeting
5 - Misunderstanding and misinterpretation of the August Action Plan - ie failure to implement a program called Football Futures as requested by the Mayor
6 - Failure to research or understand Charter Mark Programme which is a key part of the role.
He was asked to leave immediately. He asked the clerk how he can appeal, Clerk stated he has no right to appeal decision.
We spoke with a union rep who suggested we send a letter to declare intention to appeal the decision based on evidence of these points being untrue and therefore his performance not failing to a standard worthy of dismissal, and failure to adhere to their contract which stated the procedure for dismissal/discipline.
We wrote a letter and detailed arguments against each of the 5 points...
1 - admits he isn't the best of spellers, however has made efforts to make sure documents are accurate. Is spelling a reason for dismissal?
2 - The committee accepted that this was due to human error rather than dishonesty, and believe that this could be dealt with reasonably by giving clear instruction on completing them and monitoring for certain amount of time.
3 - S missed one monthly one to one meeting with the FA manager. This was because the FA manager sent through outlook an invitation with the date, however this was not received - it was not in S's calendar or diary and he discussed this with him at a later meeting when he stated that he didn't realise he'd missed one, because the invited didn't come through. Manager accepted this and emailed a full list of dates via invite - this was received in a format that couldn't be read, S emailed him to tell him, and he replied with a list of dates - no other meetings were missed. S can not access emails now due to the termination.
4 - Agreed that the work sheets weren't completed - first 2 weeks were, then 4 missed before it was brought to attention and as he was so busy implementing the programmes detailed on the Action Plan he felt that the priority was the work, rather than admin. (Noone asked him for them during those 4 weeks, which seems that they were perhaps taking an opportunity to prove his "incompetence?).
5 - The action plan consisted of 8 points - he states that 7 were met, and the one regarding Football Futures hadn't been met until then due to research that suggested it wouldn't work. He had presented that to the steering group and they had insisted on it being done the way they wanted, so he implemented this and it was due to start on the day they dismissed him. He had to cancel this following the termination but had provided an update to the steering group in Sept to raise his concerns, where they stated they still wished to implement it and he agreed that he would. He has had no further opportunity to report back on the progress as it was due to start that day.
6 - Finally, the "Programme" is actually the Charter Standard. In sept steering group, S provided a presentation on all of the clubs he had worked with to help them reach various points on the standard and therefore showed how his own understanding had developed in relation to this. Admits he had no prior knowledge of it but researched it when he was required and now is fully conversant.
Letter also stated that the position seems untenable and to settle on payment for the probation period (until Dec 4th) would be satisfactory.
We received a letter back this week which has left us slightly confused. They state as he was terminated on probation this is covered under the Staff Handbook and anyone not performing to standard can be terminated (we are not disputing that point, however their method and lack of any chance for him to put his side across re the performance, and the points themselves not being justified).
They state as it was not under the disciplinary procedure, right of appeal doesn't stand.
They then provide evidence - series of 4 emails from Clerk to S - highlighting spelling errors in S's emails previously and stating that S can ask him to proof read if necessary. (Ironically, Clerk's emails also contain spelling and grammatical errors).
The letter also claims that there have also been "complaints" from someone else at FA that he failed to attend meetings, and regarding his poor performance. There is no other mention of this either previously or in this letter, other than one email addressed to S stating his disappointment at him not attending one mtg, which S had given genuine apologies for and attending all following mtgs.
They attached the Action Plan - but have not acknowledged any of the other points - and also a copy of the blank work sheet for each week. They haven't acknowledged any of the points his appeal letter raised.
The letter ended stating he had been given contractual notice of one week with payment in lieu. There is no conclusion to it to state their intention or what they will/won't do.
Today he has asked for his P45 as he is at the job centre tomorrow and has yet to receive this. Clerk replied stating that he hasn't got it yet as he has to wait for the final pay, and needs to wait for the outcome of the appeal (which confuses us as the letter seems to state he has no appeal?), and if he wants his P45 for the one week's notice pay, this will mean that he revokes any appeal. The asst clerk also emailed back a few minutes later stating she was issuing this on Friday with his final paycheck - we haven't yet replied.
Having looked on their website, there is a policy document which includes dismissal/discipline policy. It states the Employment Act which covers ALL employees (no specific mention of probation), and the statutory procedure that must be followed to end someones employment:
That the allegations are put to the employee in writing
They are invited to a meeting to give their side of the story and can be accompanied
They must be informed of the right to appeal the decision.
I understand that as he has less than 1 year employment he is not in a position to claim unfair dismissal, however the policy document they have on their website states that not following the procedure in the policy allows for it to be Automatically Unfair, and negates the need for this minimum length of service.
Would like some advice please on where we may stand on:
1 - Does he have a right to appeal?
2 - Are they still obliged to follow a procedure even though it was a termination under his probation?
3 - How should we respond to this letter which doesn't really acknowledge any of the points he has raised - they seem to be ignoring anything that may support his performance.
4 - Can they withhold the P45 until appeal is sought, and if he gets the P45 I feel they are hoping to use this to state that he no longer wishes to appeal.
5 - Any general advice on how, if at all, we should proceed.
Sorry it was so long, if we felt that he hadn't been performing well at all then fair enough, we don't dispute they have the right to end the probation if someone isn't doing well, but it seems that all through his time there they have been out to find reasons to get rid of him - there has been quite a turbulent relationship (from their part, hubby is very laid back and friendly) and he has always felt that they are not happy with his work despite huge efforts on his part. He has also had nothing else ever raised to say that if he didn't do A,B,C he would be dismissed, or that FA managers had raised any concerns.
Thanks for reading
0
Comments
-
1 What does his contract say about the right to appeal dismissal decisions during probationary period?
2 Why does he want his P45?0 -
Hi,
The contract only specifies probation is 3 months with the possibility of extension, and termination if not performing. The grievance/dismissal/discipline part specifies a procedure similar to the one i mentioned above with letter detailing the allegation, a meeting for both sides to attend and give their account, and a right of appeal. It doesn't specify anything relating to probation. It states employee can appeal within 7 days to chair of the council and that there will then be an appeal meeting where he can be represented, and the decision further reviewed. As above, he was told verbally by the clerk that he couldn't appeal, but we don't have much confidence in his knowledge - he has admitted to hubby numerous times that he isn't familiar with policy.
Unfortunately he doesn't have a copy of the Handbook which they referred to.
Re the P45 I was under the impression he should have it ASAP (though admittedly I don't know why) but he is at the job centre tomorrow to sign on and they have asked him to bring it - again admittedly left it late to ask for it - but they state it could affect any benefit if he doesn't have them. As we are now on one wage, and I'm due off on maternity in several weeks, we really need to get them sorted ASAP.
Thanks0 -
To be honest, I think the council has gone way above what they needed to do and have shown to be very professional and thorough. Your husband as employed under 2 years can be dismissed at anytime without any legal fallback, yet the council has given him ample chances to get his act together and gain permanent employement. He has to accept that he has failed badly. Just the fact that he claimed mileage and pretended to have been to meetings, if due to errors, is showing serious lack of professionalism. He also failed to provide weekly timesheet which were clearly highlighted as one of the requirements. It seemed that he failed to appreciate that all these were conditions that failing being achieved would mean that he failed his probation. It was his last chance to do everything right. He didn't.
The situation is very unfortunate, but your husband needs to accept full responsibility for this outcome. Most places would have got rid of him the second he claimed mileage for meetings he didn't go to, or worse would have been investigated for fraud. He is actually quite lucky to have had such a flexible employer.0 -
Didn't read the whole thing, but I hope I've picked out the salient point. He can be sacked for any or no reason until he has 2 years (not 1 since April 2012) employment as long as the reason is not discriminatory. He can try to fight it but unless he can persuade them to change their mind they will be successful in dismissing him.0
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It's difficult to put across every aspect of the situation no matter how much I write on here, but the fact that he can't spell and has not filled in a very basic worksheet I don't believe mean that he has failed badly. If he were not pulling he weight and had been at fault then I would be the first to talk to him about it and encourage him, but he has shown me all of the evidence of the work he has done, which is in answer to their requirements.
The fact that they extended his probation initially was simply due to a lack of management in a new role, where I feel anyone would find difficulty to know where to start in a brand new position if no-one tells you what they want. Secondly, he has met every point on their action plan except for the filling in of an admin form - that doesn't form part of the job role or his main responsibility, and the fact that they managed to leave it unmentioned for 4 weeks does not seem professional or thorough to me.
Like I say it's hard to portray all aspects of it, but they certainly haven't been professional and they have since stated that the Personnel Committee was already arranged to discuss his performance prior to the mileage matter coming up, yet when husband asked him about this, he stated that the meeting was to discuss the mileage- just all seems a means to an end for them so they can get him out without any fallback as you say before he is contracted or has longer service.
@agrinnall - Is there any procedure that should be followed in that instance? It is only from this policy document (the one about the Employment Act) that said they should follow a statutory procedure that's given us reason to ask.
Cheers0 -
(a) There are no statutory disciplinary and grievance procedures any more - they were rescinded years ago! So whatever the policy says the law applies - two years employment and if you don't have that then it is not automatically unfair dismissal.
(b) He doesn't have the required service, so there is no claim possible here, so...
(c) It is irrelevant whether they hold an appeal or not, and ...
(d) Intentional or not, he committed fraud, so I would think very carefully before kicking up a fuss, because "failed probation" looks a lot better on a reference than "thief".
Sorry, but he needs to understand that filling in your expenses claim before you actually incur your expenses, when you don't have time to fill in your timesheet to justify those expenses looks very, very bad. If this got to a tribunal (and it won't - of that I am certain) it would go badly for him. It is standard operational procedure - you fill in an expenses claim form after you incur expenses, when you know what those expenses are.0 -
The reason I asked was re the document they have on their website - does this no longer apply?...
"The Employment Act 2002 introduced statutory minimum dismissal and disciplinary procedures and grievance
procedures. The new procedures are to be implemented on 1st October 2004. They apply to all employers and
employees. Therefore for the first time local councils will have a statutory obligation to carry out certain procedures.
1. Aims of the new Procedures
1.1 The introduction of the new procedures is an attempt by the Government to reduce the use of litigation as a
first resort for employees who are in dispute with their employers. The provisions are aimed at encouraging
the use of proper internal procedures, prior to any employment tribunal involvement, by both employers and
employees. The 2002 Act seeks to achieve these aims by:
a. the introduction of statutory dismissal and disciplinary procedures (DDPs) which employers must follow
otherwise any dismissal will be automatically unfair"
Re the fraud, I work for the police, if I were married to someone I believed was so dishonest, I would be duty bound to deal with that regardless. However for either of those offences to have taken place, there has to be dishonesty. There was not. Fair play filling out the forms retrospectively is obviously the norm, but that doesn't make him a thief. Losing his wage for the sake of a one off £50 expense when expecting a child - wouldn't be the smartest move would it.
Thanks for the advice otherwise.0 -
but the fact that he can't spell and has not filled in a very basic worksheet I don't believe mean that he has failed badly.
But you don't need to fail badly not to have your job being made permanent. If you employer is not satisfied with your performance, that's enough for them to justify not employing you. A probation period is to confirm that what the company considered true on the job application and during the interview is being confirmed.
When the probation period is extended, that meant that the company is not satisfied with performance and that the employee is offered a last chance to prove themselves. It is not about not doing something very bad at this stage, it is about meeting every single action raised in the plan. Failing one is failing the whole remedial plan.0 -
(a) As I have stated - the statutory procedures were rescinded, I cannot recall exactly, but about 2008/9. And even then - you had to have the qualifying period (at that time one year) or you still couldn't claim. The procedures were ON TOP of the qualifying period, not instead of.
(b) An employer does not have to meet the criminal test of evidence. He claimed money to which he was not entitled. In employment law that is dishonesty. They may not have sufficient evidence to bring criminal charges - but that does not matter in employment terms, and there is nothing to stop them saying so.0 -
I understand that, but they already stated that they accepted it was a genuine mistake, and had effectively written that off.
Okie doke, so that document is well and truly outdated then!!?
Regardless of our personal situation, though I accept employers need to be able to have effective employees this seems like such an easy way for an employer to get someone out of their workplace for any old reason?!0
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