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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46784
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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New Director just started ( three months in post) Just had

Customer Question

New Director just started ( three months in post) Just had a letter from my NHS employer detailing capability and performance issues. Option one is formal capability process as per policy with weekly reviews. Option 2 is permanent redeployment with pay protected for 12 months and monthly reviews after which time I could be downgraded. No support offered and no training. Never had an appraisal review identify problems before and first time in 20 years service has anything ever been highlighted to me. Are my employers following the legal side appropriately ?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Is your 20 years service continuous with the current employer too?
Customer: replied 1 year ago.
Yes continuous service within the NHS however I have worked for this employer for 18 months
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
Shall I send you the letter ?
Expert:  Ben Jones replied 1 year ago.
If you can upload it that would be great thanks. In the meantime can you please let me know if you have checked the workplace policy to see if they have followed it to date?
Customer: replied 1 year ago.
I've added the letter plus the policy. The problem as I see it is that they are offering me a temporary redeployment (12 months) but say I will not return to my post and I lose protection of earnings. This doesn't seem correct according to the policy ?
Expert:  Ben Jones replied 1 year ago.
At this stage I would try and challenge this by identifying steps of the procedure they have not followed. For example, it states you should have had an initial discussion to discuss the issues. Also it specifically states it should not be the first time the employee is made aware of the issues. Also I agree that the proposed option of redeployment does not agree with the policy as you should be redeployed on a temporary basis (i.e. go away for a period then return) and you should get pay protection too. So the employer is not following their own policy. This does not mean they are breaking the law as it is an internal policy but it does mean that if by not following the policy they reach a decision which has a detrimental impact on you (e.g. dismissal), then you would be able to challenge it as an unfair dismissal. This is your basic legal position. I have more detailed advice for you in terms of what a tribunal would look at when establishing the fairness of a capability dismissal, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46784
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
5 stars all done
Expert:  Ben Jones replied 1 year ago.
Thank you. So as mentioned, 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. I wold hope it does not get to that stage and if needed you have the internal grievance process to use if you want to complain about a failure to follow an internal policy.

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