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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48204
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have taken over a company that stop trading .i already had

Resolved Question:

I have taken over a company that stop trading .i already had my Own ltd company so I took the customers and staff and integrated them with my staff.no money exchange hands and no contracts for the company or staff were signed.this happen on 1st 11/2014,
One of the staff I inherited is not up to the job.am I liable for the work in did with the old company about 4 years,or just the 5 months he's work with me and what redundancy is that likely to be.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Did you continue operating the old companys business?

Customer: When the company stop I took the good will if you like of the company as compensation to what was owned to me but no debt was taken of the bill .
Customer: Oh hello Ben
Customer: None of the old company names or numbers were used it all went into my business name
Ben Jones :

thanks, ***** ***** business activities, what the old company did - you continued doing?

Customer: Yes
Ben Jones :

ok let me get my response ready please

Ben Jones :

It is very likely that a piece of law known as TUE would have applied because you took over the business as a going concern and continued running it. It means that you would have taken over all its employees too and with it they would have transferred their employment rights to you. This would include their continuous service so in effect you must add their previous service to the period they have been with you.

The issue here is that as this person has over 2 years’ continuous service they are protected against unfair dismissal. It means that to dismiss them you need to find a fair reason that applies in the circumstances and also follow a fair procedure. If they are not performing well, that is not a redundancy – you will need to consider dismissal on grounds of capability.

As far as the law stands in that respect, 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. So ensure you follow a fair procedure, issue appropriate warnings, give them the chance to improve and only if there is a continuous failure to perform as expected can you consider dismissal.

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you

Customer: Bugger ,but yes thanks that helps cheers alan
Ben Jones :

you are welcome

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