Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Did you continue operating the old companys business?
thanks, ***** ***** business activities, what the old company did - you continued doing?
ok let me get my response ready please
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:
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
you are welcome