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  • FIRST POST
    • palasmy
    • By palasmy 18th Jul 18, 9:07 AM
    • 171Posts
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    palasmy
    Capability Hearing
    • #1
    • 18th Jul 18, 9:07 AM
    Capability Hearing 18th Jul 18 at 9:07 AM
    Hello All

    Apologies for the long write up but I wanted to put my story in the right context hence the essay!!

    I'm 44 years old and have worked for this company for 17 years at various international locations, and in UK since 2007 Sept. I was also deputed to the Middle East recently between 2014 - 2016. The company is a world leader in Oil service industry catering to the Upstream Exploration business. There was a redundancy program in 2016 where the workforce was almost reduced to 50% world wide in our offices.

    I'm the youngest in the current team whilst the oldest is nearly 60. Since my arrival from the Middle East I have been dumped on projects/work that were not very appealing in terms of revenue, as a consequence my reviews / appraisals were in line with this. In addition to this the company also introduced a quarterly feedback system where they pretty much asked the staff to literally 'market themselves' in the form of what each of us brought to the table. Obviously with the kind of work I was doing there wasn't a great deal that I could come up with and from what I gather from the team they had similar comments too. Our supervisor, who himself was demoted from a Managerial level to supervisory level, with his plans for early retirement already in place he just wants to go with the senior management's flow.

    Last week I was called in for an informal chat by my Manager where he informed about the capability policy and scared me with a target, which he himself admitted can be really tough. His comment was that my performance wasn't upto the level and that there were others who is able to perform way beyond than me. Yesterday again I was called in for another informal catch up where he showed me the performance improvement plan (PIP) that seemed so unrealistic, both technically and time frame wise. So, I queried what were my other options. His response was he canít discuss them without a HR person. I have been invited for another informal meeting on Friday with him and a HR person.

    My queries
    How should I face this situation, I feel Iím being unfairly targeted and some form of discrimination is going on which I canít quiet grasp
    As the situation in the office is very much a Ďdog fightí for work, the other three in the team seems like ganged up against me or could be just be quiet to safe guard their own positions.
    Can I take my supervisor and the team lead for the informal meeting with me, so I know what their positions are in respect to my current situation. So far except my manager everyone else has been tight lipped despite all being higher in hierarchy than me.

    PS. I do have my own doubts about my supervisor as I had a small scuffle with him few weeks ago on a work, but I would be surprised if he had taken that to this level...

    Really would appreciate your valuable comments and thoughts, thanks in advance for your time.

    Should I accept the PIP option and give it a try?? Ofcourse the risk is if I canít make it then I have to accept the dismissal on that ground, what happens if I withdraw half way through the process, can I resign??

    Thanks
    Feeling lost!!
Page 3
    • scaredofdebt
    • By scaredofdebt 23rd Jul 18, 12:28 PM
    • 1,094 Posts
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    scaredofdebt
    I'd negotiate the figure and take whatever you can get, over and above that. Their offer is actually quite generous, I would try to get more and ask for a termination date as far into the future as you can get so you have time to start looking for another job.

    Also ask them about favourable references and as mentioned above, removing any clauses in your contract that might limit your options.

    Obviously get this all in writing.

    Legally they are treading a fine line by giving a date to something that hasn't been agreed, it might constitute constructive dismissal but I am not an employment lawyer.

    (their offer is probably better than you would get if you wont an industrial tribunal)
    Make £2018 in 2018 Challenge - Total to date £1,923
    • getmore4less
    • By getmore4less 23rd Jul 18, 5:39 PM
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    getmore4less
    What did people get in the redundancy round?
    • palasmy
    • By palasmy 23rd Jul 18, 8:24 PM
    • 171 Posts
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    palasmy
    First today's update, queried my lead about a copy of the feedback on my interim appraisal, he simply pushed till the end of the day and then reluctantly approached our supervisor. It did seem like he was talking about my request since they were mumbling couldn't quiet hear what happened there.. And all this happened just few minutes before he left for the day, so I didn't get any response... sadly.. conveniently ignored.

    Tomorrow I will put a bit more emphasis on my request
    • palasmy
    • By palasmy 23rd Jul 18, 8:28 PM
    • 171 Posts
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    palasmy
    I suspect trying to stay will be a non starter,

    In this game it is about pecking order and who carries influence.

    The instigator/driver of this to back down from the stance we need to get rid of this person would require someone higher in the pecking order to overrule and undermine that person, unless you have influence with someone above the person driving this, you are leaving one way or another.

    One thing you must get in the agreement is the removal of any contract clauses that restrict you job opportunities like working for competitors.

    You could also aim to get the SA externally visible as a redundancy


    if a tight industry sector you need to be networking your imminent availability.


    I think you said your recent project were successful in getting more business that could be a useful insight for a competitor looking to gain some market share.
    Originally posted by getmore4less
    I do know someone at really the top level but then to be honest I have given up myself plus at this point in time I have lost all faith and trust in that company.

    Your point about being careful with that clause about working for competitors is an interesting one. Didn't realise this could be a problem, but good to know that.

    And yes I have started to network despite the tight conditions but although it may take some time the chances of it to happen are there...
    • palasmy
    • By palasmy 23rd Jul 18, 8:30 PM
    • 171 Posts
    • 19 Thanks
    palasmy
    I'd negotiate the figure and take whatever you can get, over and above that. Their offer is actually quite generous, I would try to get more and ask for a termination date as far into the future as you can get so you have time to start looking for another job.

    Also ask them about favourable references and as mentioned above, removing any clauses in your contract that might limit your options.

    Obviously get this all in writing.

    Legally they are treading a fine line by giving a date to something that hasn't been agreed, it might constitute constructive dismissal but I am not an employment lawyer.

    (their offer is probably better than you would get if you wont an industrial tribunal)
    Originally posted by scaredofdebt
    This is exactiy why I wanted to see if I can push the date of termination so that I can reduce the amount of time I'm jobless. As you commented perhaps I can politely flag about the 'constructive dimissal' phrase and see if they are melting..
    • palasmy
    • By palasmy 23rd Jul 18, 8:33 PM
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    palasmy
    What did people get in the redundancy round?
    Originally posted by getmore4less
    I don't know getmore4less but I can say they are generally very cautious about obeying law as they are world leader in this business and wouldn't take a chance with their reputation especially during such difficult times..

    Their salaries however aren't the best in the industry but they gave job security all these years until recently.. and since the merger with people across the channel (another company that bought us)..
    • getmore4less
    • By getmore4less 24th Jul 18, 7:00 AM
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    getmore4less
    In contact with any of those made redundant to get a hint on if it was better than statutory?
    These could be good networking contacts for a new job if they have got new jobs.

    In my industry the first thing you do when looking is poll all the old work buddies to let them know someone is available.

    I don't understand why they did not just make you redundant?
    Last edited by getmore4less; 24-07-2018 at 7:12 AM. Reason: fix it to make more sense
    • palasmy
    • By palasmy 24th Jul 18, 7:08 AM
    • 171 Posts
    • 19 Thanks
    palasmy
    In contact with any of those made redundant to get a hint on if it was better than statutory, these could be good networking contacts for a new job if they have got new jobs in my industry that's the first think you do when looking is poll all the old work buddies to let them know someone is available.

    I don't understand why they did not just make you redundant?
    Originally posted by getmore4less
    I have a lot of questions too in this regard about this sudden preposition and whether this is just a start of another wave or it is just me!! This is why I'm trying to get more information..

    Yes it is about time I do more effort in checking the status of the people who left..
    • palasmy
    • By palasmy 24th Jul 18, 8:58 PM
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    palasmy
    Today, a little more productive than yesterday.

    In the afternoon, after two nags, my supervisor finally forwarded the appraisal forms to me, with both my lead and his feedbacks on it. I had scheduled a meeting at 3pm with HR (an informal one) and I had only 10 minutes to review what was there in the reviews. Anyway overall the reviews were similar to my last quarter so no surprises contrary to my thoughts.

    It was also a little shocking to learn that my Manager never discussed either the PIP or the SA with my supervisor. He seemed little upset when I told him how discouraging he was about the PIP and was only keen to send me out. Supervisor did admit he wasn't surprised about the PIP but then was hoping I would take it and prove it. So he was taken aback when I said I lost confidence when my own Manager wasn't keen to keep me. Admittedly I couldn't believe my supervisor's reactions but anyway I asked him how was he going to be running the project with only two people, he was pretty relaxed and said I will just put that forward to the Manager as he is the one who will be calling the shots. To sum it up I think for various reasons now, it doesn't seem fitting for me to stay there any more. As many here suggested I will make the best of the situation and leave promptly.

    HR was very receptive although I'm totally aware that both my Manager and HR have a common aim here so was cautious!! I started off with my unhappiness over how the management has dealt with recession and how unfair it has been to its long term staff. I told her that tactfully people like me have been sidelined from good projects for a significant period to make case through the appraisal that our performances where not in level to people with similar positions but doing better projects. I also told that it was very un realistic PIP for someone like me, she commented they can request the PIP to be changed if that was the case. I'm not interested in that option anyway now..

    I did get the feeling that the management has already picked few more people to do this exercise. Will wait and watch..

    After that I wanted to get a bit more information about the SA itself so that I can take a bit more time to decide on what I can ask for, below is a summary of that,

    1. No internal opportunities in the other departments as of now.
    2. Date of termination is flexible but only after I agree that I will exit
    3. Garden Leave is doable
    4. Support for Re-training in an area of my choice
    5. Assistance with out placement services (CV etc..)
    6. Tax free termination pay is negotiable - haven't said anything yet but she said you can give us a proposal for us to evaluate and consider.
    7. Can be agreed that I resigned the position rather than as an SA

    I'm very grateful to MSE and all the people who have been so honest and sincere with their comments and suggestions for my case here. I have learnt a lot and I really hope many others in a similar situation like me can take some useful pointers from this thread.

    As always, would appreciate your comments and suggestions and I promise they will be greatly received.

    Thanks
    • sangie595
    • By sangie595 24th Jul 18, 9:55 PM
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    sangie595
    Voluntary redundancy to be stated as the reason for leaving - not resignation. Resigning without a job to go to is no better than being sacked - many employers will assume that you've done something to be sacked for! Voluntary redundancy is actually meaningless, but since nobody knows that, it doesn't matter.
    • lulu650
    • By lulu650 24th Jul 18, 10:12 PM
    • 902 Posts
    • 973 Thanks
    lulu650
    2. Date of termination is flexible but only after I agree that I will exit
    Originally posted by palasmy
    That's really good. I work with a different sector of professionals and once a date for termination had been given for an SA, it stayed. If extended then the final lump sum would also go down
    7. Can be agreed that I resigned the position rather than as an SA
    Originally posted by palasmy
    If you resign what guarantee have you got that everything else will be honored if not leaving under an SA? This makes me uneasy.....
    Saving money right, left and centre
    • palasmy
    • By palasmy 25th Jul 18, 10:07 AM
    • 171 Posts
    • 19 Thanks
    palasmy
    Voluntary redundancy to be stated as the reason for leaving - not resignation. Resigning without a job to go to is no better than being sacked - many employers will assume that you've done something to be sacked for! Voluntary redundancy is actually meaningless, but since nobody knows that, it doesn't matter.
    Originally posted by sangie595
    "voluntary redundancy" seems a good idea although it still raises the "WHY" but vague than resignation...

    That's really good. I work with a different sector of professionals and once a date for termination had been given for an SA, it stayed. If extended then the final lump sum would also go down

    If you resign what guarantee have you got that everything else will be honored if not leaving under an SA? This makes me uneasy.....
    Originally posted by lulu650
    I think 'Resignation" is only for the purposes of references and not in literal sense. The SA would be still the route adopted but for rest of the world it will be made to look like a resignation.
    • getmore4less
    • By getmore4less 25th Jul 18, 12:52 PM
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    getmore4less
    "voluntary redundancy" seems a good idea although it still raises the "WHY" but vague than resignation...
    Originally posted by palasmy
    Also VR is OK for claiming contributions JSA where as resignation may get payments refused if you want to claim.

    It is fairly common for places to use VR first and if not enough apply to then make compulsory and as your place has let people go recently you can spin the story to give credibility to it being a phase two redundancy situation.


    Also if you have you eyes and eyes open you will probably see the signs if others are on the hit list.

    we always knew when something was about to happen as in the weeks leading up to the announcements the work/meeting patterns changed for certain people.
    • palasmy
    • By palasmy 26th Jul 18, 12:18 PM
    • 171 Posts
    • 19 Thanks
    palasmy
    Also VR is OK for claiming contributions JSA where as resignation may get payments refused if you want to claim.

    It is fairly common for places to use VR first and if not enough apply to then make compulsory and as your place has let people go recently you can spin the story to give credibility to it being a phase two redundancy situation.


    Also if you have you eyes and eyes open you will probably see the signs if others are on the hit list.

    we always knew when something was about to happen as in the weeks leading up to the announcements the work/meeting patterns changed for certain people.
    Originally posted by getmore4less
    Ok, I agree VR is the best way going forward, although in terms of insurance claims it really doesn't matter to me as I haven't got my self covered for the mortgage which I know was so stupid to not do that. Does the VR help in any way for the HMRC or council benefits??

    For my tomorrow's negotiation meeting with HR, this is what I plan to propose,
    • 6 Months tax free termination play plus an additional one month garden leave
    • In the current package, there is a sum equivalent to roughly 3 months net pay as "contractual notice payment". I take it this will get reduced if I request for garden leave, is that correct??
    • Will request for further details of "support" for re-training & career support services, i.e. will there be financial support to pay off the fees for any courses that I choose to help me find another job.

    And from the findings so far, many of the people who left this job have either changed career or still looking out.... Not a lot are still sticking to this profession, and one of our competitors has asked me to wait until later this year as they are interested in my profile but work load isn't sufficient to make the case yet..
    • palasmy
    • By palasmy 28th Jul 18, 8:17 AM
    • 171 Posts
    • 19 Thanks
    palasmy
    Good morning,

    I have been talking few others who had left the company recently and it turns out many of them were in the same boat a me!! Little did I knew about this as I thought all these people had left on their own accord..

    Apparently the general comment was they all managed to the stretch the time by asking to alter the PIP as the initial one was very unrealistic like it has been given to me and also what was interesting was that they weren't offered any negotiation on the deal. That made me wonder if I was given that privilege just because I wasn't confronting perhaps??

    Anyway have been given extra time until Tuesday now. My manager is back on Monday. But I plan to take off on Tuesday as I have to do childcare.
    • palasmy
    • By palasmy 10th Aug 18, 6:16 AM
    • 171 Posts
    • 19 Thanks
    palasmy
    After my discussions last week, the company agreed to raise the package by another month and gave me a draft copy of the SA. I was told to get it vetted by a Solicitor.

    My meeting with Solicitor yesterday apparently revealed a few other things in my current circumstances that I should be considering. He felt that the amount they are paying isn't reasonable especially when the job market is very tough. Secondly, he also felt that the Company is unfair with the way they are dealing with this whole situation. The PIP was set up for failure and on top of that there is a potential case for discrimination when there are several others in similar position who are less able than me.

    Now, I'm not sure how much to go with the Solicitor's advice however I guess I'm only following what the company has asked me to do, that is to seek advice from a solicitor. The Solicitor is to talk to the HR today about the situation, I did tell him that I don't want to complicate matters more than what they are already.

    Just a concern how the company would react and whether there will be any negative consequences on my profile as a result of this twist.

    Thanks
    • getmore4less
    • By getmore4less 10th Aug 18, 7:34 AM
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    getmore4less
    going back a bit.

    IMO keep the termination payment separate from the notice based payment and any contractual stuff like holiday bonus etc.
    This ring fences the bit that are taxable

    The notice based can be worked, garden leave or PILON.

    These could be a mix where you work a bit(handover) have GL(to extend the termination date and you can say you still have a job for a bit)and PILON for any left over.


    No matter how bitter and angry you are remember the work place is a small world and although this may be a revelation to you that the company has been doing this for a while the rest of the industry will know which in a ways is quite good for future employment prospects when the work is there, being "available" is not as negative as it could be.

    If I have it right for your 11 years service, the package on the table now is around
    4 month gross tax free
    3 month notice pay(as PILON).

    Do check with the solicitor on how far the money the company will pay will go.
    I suspect it may just cover that initial consultation and this first call.


    ON the new work front do places ever need interims or offer single project contracts, that may be a way to get some money in while looking.

    Another angle may be to look at your customers and network through them, would they have anything you could do, then suppliers...
    • sangie595
    • By sangie595 10th Aug 18, 11:15 AM
    • 5,084 Posts
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    sangie595
    After my discussions last week, the company agreed to raise the package by another month and gave me a draft copy of the SA. I was told to get it vetted by a Solicitor.

    My meeting with Solicitor yesterday apparently revealed a few other things in my current circumstances that I should be considering. He felt that the amount they are paying isn't reasonable especially when the job market is very tough. That is irrelevant. A tribunal - if you had a case and if you won- would not consider that. You've done your negotiating - that is the time to argue circumstances, not now. Unless your want to risk losing the lot by going back and saying no. Secondly, he also felt that the Company is unfair with the way they are dealing with this whole situation. The PIP was set up for failure That is an opinion, not something you can proveand on top of that there is a potential case for discrimination when there are several others in similar position who are less able than me. Utter and complete rubbish. Being "less able" ( and that's your opinion, not evidenced fact) is not a protected characteristic and no discrimination claim can exist for such a thing.

    Now, I'm not sure how much to go with the Solicitor's advice however I guess I'm only following what the company has asked me to do, that is to seek advice from a solicitor. The Solicitor is to talk to the HR today about the situation, I did tell him that I don't want to complicate matters more than what they are already.

    Just a concern how the company would react and whether there will be any negative consequences on my profile as a result of this twist.

    Thanks
    Originally posted by palasmy
    I seriously hope that advice doesn't come from an employment specialist. And yes - the settlement doesn't exist until signed by both parties, so there is nothing to stop the employer improving it - or taking it off the table altogether and going back to the performance measures for you.

    The solicitor is acting on your behalf - if you didn't want them to talk to HR then you should have said so. You are also aware that this is likely at a cost to you? If the employer is paying a contribution, which is common practice, that only covers reading it, advising you on it, and witnessing it. The minute they did more than that, the cost comes down to you.
    • Undervalued
    • By Undervalued 10th Aug 18, 11:33 AM
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    Undervalued

    The solicitor is acting on your behalf - if you didn't want them to talk to HR then you should have said so. You are also aware that this is likely at a cost to you? If the employer is paying a contribution, which is common practice, that only covers reading it, advising you on it, and witnessing it. The minute they did more than that, the cost comes down to you.
    Originally posted by sangie595
    Yes.

    OP has the employer agree to pay for your legal advice up to £xxx?

    If so, has it been clearly agreed that they will pay for this even if, for any reason, it doesn't lead to a SA being signed?

    It is a common misconception that the employer HAS to pay for the employee's legal advice for a SA. The requirement is that you are advised by a solicitor (or specially trained trades union official), that they provide a certificate to that effect and have appropriate insurance in place. Who pays for that advice is a matter for negotiation.

    Any work done by the solicitor over and above the agreed fee (if there is one) is down to you regardless of whether it achieves a better settlement or not. Obviously if spending £1K with the solicitor gets you more than that in additional settlement then it is money well spent. But be aware of the gamble you are taking.
    • getmore4less
    • By getmore4less 10th Aug 18, 12:04 PM
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    getmore4less
    Previous post(#22) said £350 towards the solicitor for the SA.
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