IBM
0211 IBM CONSTRUCTIVE DISMISSAL CLAIM
[The legal document below was prepared in order to run a constructive dismissal case in an Employment Tribunal. In fact it never got that far, but was settled amicably with IBM under the aegis of ACAS. Even so, it nicely summarises what happened]
DAVID MERCER versus IBM
The plaintiff was employed by IBM as an Industry Specialist in IBM Product Sales Ltd. on the basis of the contract contained in a letter from Jayne Prattis, Personnel Officer, dated 19 December 1984, which also referred to the Terms and Conditions contained in the Employee Handbook.
Under these terms and conditions, in the Employee Handbook, the plaintiff was entitled to treatment "in keeping with maintaining IBM's full employment practice". The exact meaning of this statement is explained in the further handbook, "Employment with IBM - Principles at Work" (ref. no. GU 59-5002) which has been distributed to employees, including the plaintiff, in 1985. In the section headed "Full Employment Defined" it specifically states "Full employment is a commitment on the part of IBM to maintain, through every reasonable and practicable effort, continuous employment for regular employees who perform satisfactorily".
Apart from satisfactory performance only one other circumstance is described which could be grounds for abrogating the contract and that is where the employee's job is discontinued or relocated; "IBM shows considerable care where an employee's job is discontinued or relocated .. to ensure that the employee affected receives scrupulously fair and equitable treatment" (again "Employment with IBS:" , GU59-5002).
The plaintiff's contract was first breached by IBM on 18 January 1985 when he was, against his wishes and in breach of the condition of continuous employment, suspended from his position. It was further breached on 4 February 1985 when the plaintiff was transferred, and effectively demoted, to non-established part time project work on secondment. Though the plaintiff accepted this latter position he did so subject to conditions which IBM has not honoured.
It is a matter of record that up to that time the plaintiff had only
been working for PSL [the Personal Computer Division]for 18 working days prior to the meeting in question, with only 8 days at his desk. Even so he had managed to complete one major, and several minor, reports; based on 26 face to face meetings with customers, dealers, consultants, competitors, and government agencies. Although these were in areas where he had no previous experience, he has never been informed that these reports were anything other than satisfactory or failed to meet the requirements that had been set. Under normal IBM practices he should have spent this time being inducted into the new job and receiving suitable training; this did not occur.
To demonstrate the standard of work; the plaintiff is willing to submit any, or all, of the reports produced to independent experts for their review of the quality delivered. He is confident, based on his 3 years of work with the London Business School (on behalf of IBM and as a visiting lecturer), that their quality, if not exemplary, will be found more than sound.
There has been no evidence that the first condition of abrogation, that
of unsatisfactory performance, had occurred. The plaintiff had in
recent years consistently recorded a level 2 performance ("Results consistently exceeded the requirements of the job in most areas", again according to "Employment with IBM" GU59-5002). He had been formally presented with an "Exceptional Achievement Award" on 11 January (this was one of only 125 such awards presented throughout IBM worldwide in 1984). There has never been any formal evidence presented to demonstrate that his performance was in any way unsatisfactory. Indeed the fact that none of the mandatory "Unsatisfactory Performance or Conduct" procedures, documented in the Employee Handbook, were implemented is evidence that neither his performance of conduct were considered less than satisfactory. In particular there were none of the required management discussions, nor any of the three distinct levels of warning (either verbal or written), and there was none of the required involvement of Personnel Management.
It should be noted that the only appropriate circumstance, reported in the Employee Handbook, possibly justifying suspension is that of misconduct. Even then the suspension is required to be on a daily basis, "while a full investigation is made", rather than the indefinite suspension, with no investigation, that actually took place. There has been-no formal complaint of, or any formal evidence presented of, any misconduct on the part of the plaintiff.
(1) "any manager has in the appropriate circumstances
the right to suspend, demote or dismiss an employee whom he manages a manager must be confident that the action is fair and reasonable, that the employee has had full consideration and has been made aware of his rights at every stage in the procedure" Employee Handbook - section 2.09
(2) "In cases of misconduct your Manager can suspend you, with pay, while a full investigation is made. Suspension would normally be on a daily basis in order that you may be advised as soon as possible of the Company's decision"
Employee Handbook - section 2.09
The record shows that during his 14 years with IBM he has never rated less than a 3 level performance ("met the requirements of the job and exceeded them in some areas" - according to Management Briefing No. 69, dated 3 October 1983) and had in 6 of the 7 years up to the end of 1934, over which period he had undertaken similar (Professional level 56) staffwork, regularly recorded a 2 level performance ("consistently exceeded the requirements of the job in most areas"). During this period he attended 4 IBM conventions (three as a Hundred Per Cent Qualifier and one as a Marketing Excellence Award).
Over this period his staffwork was reportedly of a high level and had included producing reports which were ultimately considered by the Central Management Committee in the United States. Of these two were most notable. One formed the basis for IBM Europe's recommendation to close down worldwide IBM's Biomedical Group (which had been IBM's first pathfinding Independent Business Unit, IBU), which was accepted. The most recent was IBM United Kingdom's overall 1985/86 Marketing Plan
which the plaintiff coordinated.
The plaintiff has for a number of years been trusted by senior IBM management, at board level, to handle the most sensitive issues with outside bodies of national standing. In particular he is one of the very small group of IBM personnel who has been allowed to be an official IBM spokesman to the press. He has been trusted to speak on IBM's part to MP's and to brief privy councillors and ministers. He has, again on IBM's behalf, conducted sensitive negotiations with senior civil servants in a number of government ministries and agencies (including DHSS, Education,BSI and ADAS). There has never been any indication that his handling of such contacts has been anything other than satisfactory.
It was indeed largely as a result of this relatively unique level of experience in such sensitive matters that he questioned the four PSL policies which led to the one policy disagreement with Mr.Watson.
In the relationship with his manager the plaintiff would argue that, after less than 8 days at his desk and with only a limited number of very brief meetings allowed by Mr.Watson, he was still attempting to develop a style which would be compatible with that of Mr. Watson; despite the difficulties caused by the severe external stresses which Mr. Watson reported, to both the plaintiff and Mr. M. Torrance, were being imposed on him. The plaintiff was, however, confident that, particularly as Mr. Watson had conducted commendably thorough investigations of his past record (determining from the plaintiffs previous management his disadvantages as well as his advantages), there would be no insuperable problems to achieving compatibility, since he had previously worked for almost a dozen different managers within IBM (for periods ranging from 4 months to 5 years) without any difficulty in changing to meet their many varied styles.
The plaintiff admits that there was one major policy disagreement
with Mr. Watson which took place on 7 January, at Mr. Watson's behest in front of an Industrial Trainee (Miss S. Darosti). The disagreement covered four issues. The plaintiff believed, contrary to Mr. Watson, that:
a) the policy of continuing to persuade ICI to accept an agreement, for the supply of personal computers, which was, in the opinion of a number of the IBM staff involved, unsuitable but which would establish a useful precedent for IBM, was against IBM's principles and unwise.
b) the proposed plan to use a government agency, ADAS, to unfairly obtain confidential information from competitors at an event which IBM was strictly not entitled to again was against IBM's principles, as described in IBM's Business Conduct Guidelines, and unwise.
c) the stated intention to publish, and hence by association with IBM's name to imply recommendation, a list of software houses providing material and support for farmers, without an adequate method of screening the program material and support to ensure their quality and viability, would potentially be misinformative, again against IBM's principles.
d) the stated intention to offer differential support in the Farming Market, to some dealers to the disadvantage of other dealers but to IBM's possible advantage, was against IBM's principles and possibly against IBM's agreement with the EEC.
Having pointed out his reservations, however, the plaintiff accepted the instruction from management not to pursue these matters, and continued to loyally apply himself, for long hours, to his work; which as reported above resulted a range of reports. At no stage did he give less than 100% of his effort or loyal support, and, at the time, was not informed by his management that they saw his performance otherwise.
In any case it would be difficult for IBM to establish any measure of either unsatisfactory performance or misconduct since in the first instance the post in question was never evaluated as is required,according to "Employment with IBM" (GU59-5002). Indeed none of the positions held by the plaintiff in the previous 3 years had been evaluated as required, and this was the subject of a complaint, via the "Speak-Up!" process, by the plaintiff. Nor were any job objectives ever set, let alone evaluated, in any A & C (Appraisal and Counselling) procedure which is required, as part of the Terms and Conditions in the Employee Handbook, to take place "at least once a year, more frequently if either requests it or if the employee or manager changes jobs". Indeed the plaintiff has not had an A & C for 21 months despite 4 job changes and his requesting such an A & C on several occasions; again in clear breach of the conditions attached to the contract.
In practice even informal objectives could not be agreed since (even though the Vertical Markets Group had been in existence for some six months) there was no agreed strategy, and the ‘proposed' strategy varied on a weekly basis (and was in any case at least in part against IBM principles). As a result it was agreed between the plaintiff and his immediate manager Mr. J Watson that the requested job objectives should be deferred until the final strategy had been approved. In the event the plaintiff was removed before this occurred.
In terms of the second condition there is no evidence that the job was discontinued or relocated. Indeed management made it very clear that the position was to be filled by another person; and this has since happened. Although it is possible that the person replacing the plaintiff is on a lower job level, and certainly is of less experience, it has never been formally claimed that the job has been changed. In any case none of the procedures documented for such a situation were implemented, indicating once more that this circumstance can be upheld.
(3) "all jobs are ranked for their relative importance according to a uniform system of job evaluation" Employment with IBM GU59-5002
(4) "in any redeployment case managers are required to show the utmost care and consideration and to follow a number of basic steps. These include informing the employee will in advance" Employment with IBM UU59-5002
(5) The subsequent transfer of the plaintiff, even if not a demotion, was similarly in breach of the contract. Such a transfer is clearly spelt
out to be in violation of IBM's basic belief of Respect for the Individual (which is a basic condition included in the Employee Handbook). That it was in fact a demotion can be inferred from the fact that the new position has been officially described as "part-time on secondment" and is not a permanent position. The condition under which the plaintiff accepted the temporary position,as documented in the memo to Jayne Prattis dated 1 February 1985 "without prejudice; subject to Personnel finding an acceptable answer to the outstanding question of my longterm security following the recent damage to my business reputation" has not been properly addressed: let alone met.
In a number of attempts to obtain rectification of the breaches of contract the plaintiff as a matter of right used the complaints procedures documented as part of the teems and conditions in the Employee Handbook.
The first of these was a Speak-Up! addressing, at its initiation,
the failure to undertake the required job evaluation. Despite the procedure having been undertaken to the start of an investigation,by Mr. Dickinson, it was never completed as required and the required report never provided, again in breach of the conditions of the contract.As a final attempt to resolve the breaches the plaintiff undertook,at the suggestion of IBM management, an "Open Door". Although the description in the Employee Handbook is very general there is a definitive description provided in the January 1985 Issue of IBM's publication "Management Topics", in an article by Ilt Caddick, (Personnel Staff Director), which received widespread distribution in IBM and was available to the plaintiff. Against the procedures described in this it is clear that even this final critical procedure was carried out in a way that was not in accord with the conditions of the contract. In particular the requisite discussions with the plaintiff to "review the issues and confirm the facts" never took place or were offered.
It is clear from Mr. Caddick's letters of 13 February 1985 and 19 February 1985 that his "objective in pursuing discussions with your management will be to obtain their unqualified acceptance of that principle" (the principle in question being that "your future in IBM depends upon your performance more than any other single factor" ) could not be met since in the second letter this is changed to "your future in IBM depends upon your performance" and this is signally qualified by the statement that "I have to say that your management's view of your performance, abilities and attitude are not in accordance with your own". This is reflected in his statement that "having failed to secure that objective you and I should meet again". It is clear from these statements that IBM Management were not willing to unconditionally accept conditions which are basic to the contract, and indeed insisted on adopting their own performance measures in contradiction to those required by the contract. That this was no simple oversight is evidenced by the fact that the "Open 'Door", itself following procedures in breach of the contract, fully supported this position and, in the name of senior management, refused to state that any of the number of breaches of procedure, and hence of contract, listed in this document were disavowed by management; "there is no merit in any of the allegations you have made".
Despite an extended search by the plaintiff for suitable redress, which has over a period of more than 6 months exhausted all IBM's formal and informal communication channels, at no stage has an apology, or even any explanation, been offered; and indeed a number of letters sent by
might be construed as intimidatory in nature.
It has been made clear that the plaintiff's future in IBM will be difficult, and unqualified support for the normal basis for performance measurement has not been forthcoming. The plaintiff's age, 45 years,and diabetic medical condition, compounded by his recent work experience, at IBM's request, in areas of uniquely unmarketable skills, would indicate that he is unlikely, either, to obtain a suitable position outside., of IBM; even if his reputation had not been damaged.
It is claimed therefore that IBM has flagrantly breached the contract on a number of occasions and in a number of ways. : Further, IBM maliciously offers no redress, nor even explanation of these breaches. Under these circumstances the plaintiff has no alternative but to claim constructive dismissal.
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