Not me but a family member. She's in a marketing job for 9 months. Had a review just before Christmas and got a glowing report. Last Friday someone make a booboo – and the victim had absolutely noting to do with it – different department. A few hours later the boss handed her a letter saying she was being put on performance mangagement and to review her options over the weekend.

Today – meeting held with HR present. Seemed like they expected her to resign – she cant or no dole etc. They seemed a bit flustered by this.

After the meeting her boss told her "it would be better for you to resign". If you go without a fuss we'll give you 6 weeks pay (she's on 4 weeks notice anyway) and a reference. She thought about it and decided to go home sick (to think about it).

Turns out this afternoon that a girl in the same dept who has been on maternity for ages and wasnt expected to return is coming back next month. Seems related.

Long run she cant stay but just now she cant afford to be unpaid looking for a new job which could take ages (kids still need fed!).

She phoned ACAS (?) who advised her to take what she can and go.

Any advice – anything obvious we're missing?

If they want her to go they'll get rid of her.

Her best option is to hang out for more (I'd ask for 10 weeks and see what they said).

It's harsh but unless she reckons she can hang in there long enough to get something else she's batter takign the cash as they, by law, only have to give her the 4 weeks pay in lieu.

they cant withold a reference

If they want her out then Id say 4+6 weeks minimum. They are obviously nervous about making her redundant and then refilling he exact same role with the maternity returner.

Make sure she requests letter outlining the reason for her performance management review given her latest performance report. It might prove useful in any constructive dismissal negotiations.

bollox to ACAS. Try CAB.

If the company had ground to sack her or to suspend her then it would have done so.

It wants her to resign and tried to make it look attractive as thats the easiest and cheapest option for them

if the company gets it wrong then she would have to go to an employment tribunal, but ET awards are not very generous, eg they will only award on the basis of current salary. UNLESS she can get sexual discrimination as SD ET awards are unlimited.

Probably the best option is for a compromise agreement for say £5000.00 plus holiday pay and 3 months pay in lieu of notice. plus get them to agree to pay a local employment solicitor.

how long does she have in?
their hr dept. must be complete clowns.
i'd do a deal, and push for 3 months paid and a reference, settle for 2 – 2.5 months paid, if it were me. i wouldn't want to work for them any more after that.

Depends on the contract but only being in the job 9 months limits her options a bit

My wife had something similar last year – they gave her 3 months salary tax free I think – severance pay? HR decided that she had done nothing wrong but her manager didn't want her to stay on .

Real advice needed. With under a years service her options are more limited. Telling her to resign is very wrong. She must not do that.

Why don't folk join ruddy unions? Every week there are a couple of these stories on here and every case a union would have taken much of the stress away.

So – go and get good quality advice from an employment law / rights specialist. CAB, local authority advice shop, law centre

"Why don't folk join ruddy unions?"

My wife's experience with the NUT when she had problems coming back from maternity leave was that they were utter sh*te. I knew more about what the law was and the options my wife had than the NUT representative that we talked to – he just agreed with everyting the council's personnel officer said even when they were wrong.

In the end someone who's worked somewhere for 9 months has very few recourses and she ought to be lookign to get out with the best result for her financially (imo).

Why don't folk join ruddy unions?

because for the one in a thousand occasions that a union might feasibly be of some use (if your union is any use at all, and that isnt a given) you have to pay extortion to the mafia your subs. Self insuring and free advice from disinterested parties turns out a much better bet.

Its a negotiation, they've made an offer – she needs to come back with hers.

But be careful she doesn't ask for too much, otherwise they'll find a reason to sack her. Ask for 3 months, but settle for 2 months – make sure tax free. Don't waste money on a lawyer.

And when she signs on, just tell them what happened.

What reasons were given for putting her on performance management, if the foul-up can't be put down to her?

The main issue she'll have is that, being in the job for less than a year, they don't even really have to give a reason for terminating her employment so if they want her out she's out. If it was me I'd be attempting to negotiate the settlement upwards in order to agree to the compromise deal.

I have to say that I take these situations with a bit of a pinch of salt as we only ever hear one side. Most companies with proper HR departments are under pressure to ensure they follow the rules, and I know that our HR department would need to be given very good reasons before we'd be allowed to put someone on performance management – and rightly so. We tend to go for the negotiated departure with a compromise agreement in place rather than the performance management route (even if someone is really crap) – it's usually best for all concerned.

My experience with unions (from my public sector days) is exceptionally poor so I've no time for them. They're a great idea in theory but unfortunately the practice is often somewhat different.

>Turns out this afternoon that a girl in the same dept who has been on maternity for ages and wasnt expected to return is coming back next month. Seems related.

Does seem a *bit* of a coincidence – so they couldn't make her (*role*) redundant. However they could just terminate her contract, no questions asked, because under a year there's no employment protection. But it sounds like they don't want to do that 'cos it wouldn't look good wrt a following employer.
She *could* ask for more, but there's no legal reason for them to do so, and tbh they're not being too bad for offering the 6 weeks extra. Still, if you don't ask you don't get, and she could always try some moral blackmail of 'I turned down another job to come here…"

>ts a negotiation, they've made an offer – she needs to come back with hers.

She has nothing to negotiate with AFAICS

>But be careful she doesn't ask for too much, otherwise they'll find a reason to sack her

They don't need one.

Thanks guys.

So b_r – if she resigns and signs on: is she still entitled to benfits? Or is it a maybe type of situation?

See CAB website for the legal position:

http://www.adviceguide.org.uk/index/your_money/employment/dismissal.htm

Might be worthwhile her seeing an advisor at her local CAB or advice centre. It does seem that her options will be limited because of of her limited time in employment, so it might end up her trying to negotiate as big a pay-off and reference as possible. The firm may even cough up for her to see an employment solicitor.

There is also another section on the CAB website which implies that she should not resign as this will affect her potential benefits, whereas being made redundant will probably not. Therefore reinforces the suggestions of getting proper advice asap!

Thanks Philby. It's in Scotland if that makes any difference.

>is she still entitled to benfits?

I don't think so, but best check – re the 6 weeks thing, the lost of unemployment benefit could be used to argue that upwards, but bear in mind they don't have to give her anything other than pay for the notice period.

+1 for Jond's comments. She has no legal right to sue for unfair dismissal unless it's on the grounds of discrimination (age, gender, race, religion etc). I have had this happen to me and I explored all my options at that time also. Union membership wouldn't do anything for her.

It used to be that if you resigned, you couldn't claim benefit for 6 months. That may be different but given the climate I would be surprised.

If she was made redundant however she could claim immediately. That might be a better negotiation position, perhaps even giving away the extra 2 weeks they were offering.

It's a s**t situation but it happens and it's best not to get hung up on the injustice of it all as it will eat her up and distract her from moving on. I know from personal experience that that's easy to say and hard to do, so your job is to be a tower of support for her.

The plus side is that the job market is really picking up right now.

For Scotland see http://www.adviceguide.org.uk/scotland/your_money/employment.htm

Hope this is useful?

Good Luck!

She needs professional advice before commiting to anything and I would have thought that if she can prove she is/was constructively dismissed ie. no wrongdoing on her part and effectively sacked to make way for someone returning from mat leave, she may well get a considerably more than they are offering at the moment.

My wife's experience with the NUT when she had problems coming back from maternity leave was that they were utter sh*te

Exactly my experience too although different union and circumstances. What I (and the VERY senior union executive) thought was an airtight case against 'her boss' became 'not so strong' as time went on. The fact that during the case, the S.U.E. went on 'fact finding' trips to Thailand and Norway at the expense of my partners employer obviously had no bearing on this!!!!
I pay £228 a year in union subs very grudgingly and from the stories I hear about antics in the flash hotels etc. which are essential to union rep meetings/training I think they may be misinterpreting the rally call 'up the workers' !

I think she's got no chance of unfair dismissal and very, very little (if any) for constructive either (constructive is exceptionally difficult to prove).

If resignation effects her benefits I'd be looking for the employer to terminate her employment as part of the compromise agreement. It's unlikely the employer will be will to make her redundant under the circumstances described, especially after starting the performance management process.

See a lawyer! 1 see conflicting advice above for why to do so

From what you have explained tel her DO NOT RESIGN under any circumstances.

It will most definitely effect any benefits.

The meeting she had with her employer needs to be minuted, and they cannot ask her to resign. If they are dismissing her they need to state that in writing and why. If they are terminating her contract it would also be good practice to say in writing why, although at 9 months I am certain unfair dismissal/ tribunal would not be an option.

Also if she believes this is out of the blue and it is not a true reflection of her performance then she needs to go into writing and state her case why, and minute what has been discussed. If her notice is four weeks, and there is only 6 weeks on the table I sure as heck would not resign.

If they want to talk a compromise agreement then they need to offer more, at least 3 months, usually tax free with the employer taking the tax risk.

If it were me I would be discussing this with a solicitor (not a union)who had previous experience in setting up a compromise agreement. It will cost a couple hundred quid at most but she certainly does not want to sully her employment record and chances of benefits by resigning.

There is such a thing as a "compromise agreement". This allows the company to make the position redundant and pay the staff member off as though it was a normal redundancy but without all the niceties of consultation periods etc. If she can get this then she can leave and sign on immediately. This will allow her to at least get her NI paid up.

I can recommend a barrister who helped me. Will cost about £350 but he sorted me out.

Thanks Coyote – can you send me their details. email in my profile.

My company regularly 'fires' people without good reason (our CEO has 'issues' with people management) – always ends up as a Compromise Agreement with a substantial payoff and gagging clause to go quietly. If you go down the Compromise root, the company pays for your legal fees – pretty standard when they want to get rid of someone but have no legal grounds to do so.

Dude, YGM. If you need any clarification or common-sense (non-legal but from (bitter) experience) advice drop me a line.

If I have understood the OP she has been there 9 months. If that is the case she has no chance as you need to have been working somewhere for 12 months minimum to have any case. She shouldn't resign but should be prepared to take redundancy and 6 weeks pay.