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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48196
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have received a capability hearing letter from HR. I

Customer Question

Hi,
i have received a capability hearing letter from HR.
I need to prepare the meeting.
I need your help in knowing how and what i need to prepare. ( statement and documentation).
thank you
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello how long have you worked there for and what are the capabilit issues?
Customer: replied 1 year ago.
Hi
1 year and 1,5 monthsfor the capability reasons please find attachments:1. letter and documentation
2. my draft notes
3. email from HR regarding the fact that even if this is the first hearing, the final outcome could be a final warning
4. company's policy
Customer: replied 1 year ago.
i would also point out the following points:
- following the point 12.3 of the policy
Informal discussions
In the first instance and so far as possible, performance issues should normally be dealt with informally between you and your manager/supervisor as part of day-to-day management. Informal discussions may be held with a view to (for example):
clarifying the required standards;
identifying areas of concern;
establishing the likely causes of poor performance and identifying any training needs;
setting targets for improvement; and/or
agreeing a time-scale for review.
In some cases an informal verbal warning may be given if your manager/[supervisor deems it appropriate. A note of any such informal discussions may be placed on your personnel file but will be ignored for the purposes of any future capability hearings.i can say that my manager had only informed me about the fact.
he never asked me reasons and we never spent time to discuss how to improve ( eventually) both my performances and how to improve the organization in the company to help the PM to avoid these situations.
Hope that this can help.
Luca
Customer: replied 1 year ago.
he warned me with " ha this is a lesson learned!"..
Expert:  Ben Jones replied 1 year ago.
Thank you. What assistance specifically do you require, beating in mind this is a Q&A site, not the same as seeing a lawyer face to face so we cannot prepare a defence or statements for you?
Customer: replied 1 year ago.
i was wandering to know:
-if it is correct that that even if this is the first hearing, the final outcome could be a final warning
- if you could suggest me a statement draft to use to writhe down my defence and what kind of documentation type i need to produce
Expert:  Ben Jones replied 1 year ago.
Hi as mentioned we cannot write statements for you - that would involve way too much time which for the fees here will be uneconomical, so that is why I wanted to clarify with you that we are a Q&A site, not a place where we can draft documents for you
Customer: replied 1 year ago.
Hi,
it my fault not to have be clear.
i was wandering to know:
-if it is correct that that even if this is the first hearing, the final outcome could be a final warning
this is was a simple request that could help me to understand if i need to set up a strategy covering a negative outcome- if you could suggest me a statement draft to use to writhe down my defence and what kind of documentation type i need to produce
I have asked if you can help me with an example to follow not to prepare one for me. A template o something like that.
can you help me in this?
thank you
Luca
Expert:  Ben Jones replied 1 year ago.
There are no templates for this - it is quite a specific request so templates for that do not exist really, at least we do not have them and my resources do not have anything like that either. So I can answer specific questions about this, but I cannot provide you with templates or statements to defend this unfortunately
Customer: replied 1 year ago.
thank you. i wasnt; aware of this. what about the first queestion regarding if it is correct that that even if this is the first hearing, the final outcome could be a final warning considering the procedure?
Expert:  Ben Jones replied 1 year ago.
That is possible. The policy is a guideline which the employer should try and follow but it is not set in stone – it is not something which must strictly be followed and in some circumstances they can deviate from it. So if they believe that the circumstances of the situation warrant deviating from the policy and the seriousness means that they have to consider issuing a final warning instead of just a written one, they are allowed to do that. There is no law which states that it must be a written warning fist before a final one – the employer has the right to jump straight to a final one if they deem it necessary.
Customer: replied 1 year ago.
it is very frustrating. but thank you.
Expert:  Ben Jones replied 1 year ago.
yes I do understand, also your rights will be limited in terms of overall employment protection due to your length of service, which you need to be aware of. Also there is specific laws relating to requests by third parties, like clients when an employee is removed. I can discuss all of that in some more detail if you could please leave a rating then I can proceed, thank you
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
yes I do understand, also your rights will be limited in terms of overall employment protection due to your length of service, which you need to be aware of. I am aware of this.
Also there is specific laws relating to requests by third parties, like clients when an employee is removed: could you please explain this to me?
thank you
Luca
Expert:  Ben Jones replied 1 year ago.
Thank you. The first pint I wanted to make is that if you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal or constructive dismissal. This means that your employer can dismiss you or force you to leave for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). Secondly, there are circumstances when an employer may feel forced to move or even dismiss an employee because of pressure from a third party. This pressure may come from a valued customer or from another third party that has a degree of influence over the employer, such as a supplier, the landlord of their premises, etc. Such a dismissal can be deemed fair because it would amount to 'some other substantial reason' (SOSR), which is one of the potentially fair reasons for dismissal allowed under the Employment Rights Act 1996. It is generally accepted that the reason behind the third party's request is irrelevant and there is no requirement on the employer to establish the truth behind the allegations. What really matters is the how important the third party's continued business is to the employer and what risks there are to that relationship if the employer does not act as per the request. For example, in the case of Dobie v Burns International Security Services, Mr Dobie was a security guard working for a contractor who supplied security staff to a Council. Friction developed between a senior Council employee and Mr Dobie, with the Council demanding his removal from their site. His employer eventually dismissed him. He made a claim against his employer, however he lost with the decision being that third party pressure to dismiss can amount to a fair reason for dismissal. Employers must still act reasonably when dismissing, in accordance with established employment principles and would need to undertake some form of investigation and hold a dismissal meeting. They should also consider whether there is any other alternative employment that can be offered to the employee instead of dismissing them because dismissal should only be seen as a last resort. However, in principle, such dismissals can be fair. So what I am saying is that if the employer really wanted to they could dismiss you quite easily in these circumstances, but they are electing to follow the capability procedure instead. So do defend the allegations but try not to make yourself seem as too difficult an employee to challenge their decision because they can turn around and dismiss if they believe that you will cause a nuisance as a result of this. So challenge it once but if they do not change their mind – accept that a final warning is something they can issue and you cannot challenge it legally.
Customer: replied 1 year ago.
Hi thank you.
I dont; want to challange them. I have just rebuild the situation of some projects. one for example nobody authorized me to proceed with the confirmation of a booking for a customer with a contract approvals and agreement pending.
It is all written. also the request on how to proceed. And there is an email of RM that says dont; book resources untile we have a contract. the customer is saying that i am not flexible? it is not my responsibility to move one with a potential risk for not to have covered service days. this is what i would like to say and asking a support in having clear what i can do and not in situation like these. is it this approach correct ( same will be for other two project) to avoid the final warning in your opinion?
Customer: replied 1 year ago.
RM= resource manager
Expert:  Ben Jones replied 1 year ago.
Yes indeed, this is the correct approach 0 you basically just have to try and show that what they are claiming is not necessarily what happened or what it seems like, but that is the best you can do here and hope that this is just a warning rather than a final one
Customer: replied 1 year ago.
thanks. so even if there are evidences that other factors had influence to this and other people says that i wasn't authorized,( real facts) there is always the risk that they can decide against these ones?
Expert:  Ben Jones replied 1 year ago.
yes they can - they can just listen to the clients' version and make a decision based on that
Customer: replied 1 year ago.
so my defense even with real facts due most of them to other projects' engagements for people that had to work on the project, specific instructions received to not do act, ( all of them based on emails) can be rejected. there is one fellow well estimated in the company who has worked with me will confirm what happened in another project + i will bring evidence of the communications where the customer lied to us regarding some committments strategic for the phase. this what really happened.. more than this i can;t put on the table.
Expert:  Ben Jones replied 1 year ago.
they can be rejected, the employer can consider your defence but still decide to side with what the clients said. the whole issue is that due to the length of service you cannot challenge this apart from making an internal appeal. so the best you can do is provide as much evidence as you can to challenge the allegations and hope that the employer takes these into consideration