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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45305
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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good morning I am working with this company for over six

Resolved Question:

good morning
I am working with this company for over six years as a mechanical maintenance engineer that was my role until it was change two years ago to multi skill they send me on a 5 day electrical course which i fail they gave me a letter to say i was incompetent should they pay me off and make me redundant and hire someone with the skill they requires
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Have you been told you are facing redundancy?

Customer:

hi ben how are you no they have not told me that

Customer:

but i can see where this is heading

Customer:

i just want to know my rights because my present role was fofce on me through a number of redundancy they make two electrical engineer redundant and keep me at the time

Ben Jones :

Did you agree to the changes 2 years ago?

Customer:

they just told me my job was safe and i was given the role

Customer:

no agreement was given

Ben Jones :

Have you been given the opportunity to take the course again, or receive additional training before you do so?

Customer:

yes i sit the test twice but fail

Customer:

but as i told you i am not electrical i have the 16 edition

Customer:

and understand the wiring requirement

Ben Jones :

Did they offer you additional training?

Customer:

not yet

Customer:

why i came to you i need to know my rights

Customer:

if i should stay and wait are seek other employment

Customer:

because i have my bills to think about

Customer:

so tell me what should i do now

Ben Jones :

ok let me get my response ready please

Customer:

should i wait or will you send it to my email

Ben Jones :

it will be on here shortly, you can just come back to the screen any time

Customer:

ok

Ben Jones :

First of all there is the issue with the change of your role 2 years ago, however if you did not formally challenge it at the time and started working on the new terms and have done so for 2 years, then it is likely you have simply accepted it and it is now your contracted position. Therefore, the employer could judge you based on this role, rather than the one you were originally employed to do.


 


When it comes to a potential dismissal, an employee's poor performance is a potentiality fair reason for dismissal under the Employment Rights Act 1996, as it would amount to lack of capability. This should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality" and must relate to the work that they were employed to do.


 


In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.


 


Generally, the reasonableness of such dismissals would be measured against the following criteria:



  • Did the employer have reasonable belief in the employee's incompetence;

  • Was the situation investigated and was the employee given the opportunity to voice their side of the story;

  • Was the employee aware of what was required of them in terms of satisfactory performance;

  • Were steps taken to minimise the risk of poor performance through training, supervision, etc;

  • Was a proper appraisal conducted and was the problem identified in a timely manner;

  • Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;

  • Did the employer consider offering alternative employment.


 


The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged.


 


The first step is to appeal directly to the employer within the allocated time for an internal appeal. After that the only viable option is to consider a claim for unfair dismissal in an employment tribunal, subject to having at least 2 years' continuous service. There is a strict time limit of 3 months from the date of dismissal to issue such a claim.


 


So you do have protection against just being dismissed and there are certain steps the employer must follow in order to show that a dismissal was fair and to be safe from any potential claim from you.

Customer:

thanks Ben because there is more lots more

Customer:

there are other employee there working withbthe same 16 edition

Customer:

who i mechanical like myself

Customer:

thanks for you service

Ben Jones :

You are most welcome. The same principles would apply to them too

Customer:

ok

Ben Jones :

Do let me know if you need me to clarify anything further for you?

Customer:

if they are going to dismiss me should they pay me off

Customer:

for my six years service

Customer:

and how many weeks out of each years should i be paid

Ben Jones :

That depends on the reasons for dismissing you – if you are dismissed on grounds of capability, then all you will get is your contractual notice period and any outstanding holidays. If you are being made redundant, then you would also get at least the statutory redundancy payment (you can calculate that here: https://www.gov.uk/calculate-your-redundancy-pay)

Customer:

ok Ben thanks alot bye

Ben Jones :

you are most welcome, all the best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45305
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you

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