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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44896
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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think I am being pushed out of job with disciplinary action

Customer Question

think I am being pushed out of job with disciplinary action - what are my rights? Been with the company for 13 years
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. can you tell me what disciplinary action has been take against you please

JACUSTOMER-bqt9ep6r- :

hi there

JACUSTOMER-bqt9ep6r- :

just off the phone with HR who are saying I am going to be put on Performance revie

JACUSTOMER-bqt9ep6r- :

not disciplinary

JACUSTOMER-bqt9ep6r- :

as I have dropped the ball in my new role

JACUSTOMER-bqt9ep6r- :

been with the company 13 years worked as EA to CEO for last 7 years and before that to the now COO for 5 years

JACUSTOMER-bqt9ep6r- :

my marriage broke up in early jan hence the probs

JACUSTOMER-bqt9ep6r- :

but they haven't been sympathetic

JACUSTOMER-bqt9ep6r- :

and now they are saying they want to put me on performance review - basically working me out of the business

Ben Jones :

Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

JACUSTOMER-bqt9ep6r- :

ok thanks

JACUSTOMER-bqt9ep6r- :

am wondering if I should play their game or tell them to get lost

JACUSTOMER-bqt9ep6r- :

:)

Ben Jones :

Thanks for your patience. Whilst you may believe that they are trying to eventually push you out through this, there is no guarantee that is the case so don’t assume the worst just yet – you have some time ahead where their intentions will become clearer so it may be worth trying to see where they take this rather than just jumping before you are pushed.

As far as your legal position is concerned, then 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. Alternatively you may also wish to consider discussing some sort of settlement with the employer where you are paid off to leave quietly and in return you agree not to claim against them – you get compensation, they get peace of mind that they won’t be sued, so that is also an option. Hope this clarifies your position?

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Expert:  Ben Jones replied 2 years ago.
Hello, could you please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this – this is needed so I can either keep the question open or close it if no further advice is required? Thank you

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