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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46731
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Ben I am considering appealing a verbal warning at work for

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Hi Ben I am considering appealing a verbal warning at work for poor timekeeping and performance during a divorce.
To keep it brief the time keeping was a matter of minutes due to poor sleep during this stressful time they have looked at it on a daily basis and disregarded the days I made up the time.
The performances are based on past unsigned appraisals due to false conclusions made by management that I appealed and won and was promised that would be changed but never were
In addition I spoke to my manager about my dog orce and asked for leeway and to please let me know if they feel I was slacking in any way and they said ok no problem however no flexible working time was requested from hr as I wasn't advised too.
No sick time was taken in this 3 month period and requests for annual leave rejected
Should I appeal based on the above
Submitted: 8 months ago.
Category: Employment Law
Expert:  Ben Jones replied 8 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 8 months ago.

Have you been told you can formally appeal?

Customer: replied 8 months ago.
witing 10 days of the letter
Customer: replied 8 months ago.
within 10 days of the letter
Customer: replied 8 months ago.
Where is my answer?
Expert:  Ben Jones replied 8 months ago.

Hello sorry I was offline by the time your response came through and have only just returned. Can I check if the verbal warning will be held on your personnel file and if it will be considered in potential future disciplinary matters?

Customer: replied 8 months ago.
It is held for 6 months and have said I have to be assessed again in 3 months and may become Written warning. I'm very concerned this is being used to dismiss me as they also cancelled my bonuses for last 2 years with me getting one for the last 6 and have not told me why before this there has never been an issue. Also
To let you know my company was acquired 2 1/2 years ago by a larger one where I was transferred under TUPE.
Expert:  Ben Jones replied 8 months ago.
Thank you. A verbal warning would usually be used as an informal and first step to highlight any issues in the workplace, be it misconduct or performance. So in general they would not form part of someone’s disciplinary record or be held on file. However, the employer is able to keep a verbal warning on file if they treat it as a formal warning and follow a formal procedure such as holding a formal meeting, allowing the employee to be accompanied and to appeal the outcome.In terms of your situation, whilst you have grounds for an appeal, you have to remember that the appeal will still be heard and considered by the employer so they may keep the outcome as it was. In other words you are not going to be appealing to an independent party which would have a more neutral approach so the outcome may be slightly biased. Still, you have absolutely nothing to lose by appealing. The outcome cannot get any worse as a result of the appeal and at worst the warning will remain in place.The issues you were going through would be a mitigating factor, although not a bulletproof excuse. If you have any evidence from managers about the appraisal issues then I suggest you consider using them as a witness in the appeal, subject to them agreeing to act as such.Finally, as far as a dismissal is concerned, this should still be some time away, assuming it is what the employer is eventually looking to do. Whilst dismissal for poor performance is a potentially fair reason to dismiss, it must be done fairly and there are certain principles which the employer must satisfy, otherwise the fairness of such a dismissal can potentially be challenged.This is your basic legal position. I have more detailed advice for you in terms of the principles governing fair dismissals on grounds of poor performance, 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, there is no extra cost and 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: 46731
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 8 months ago.
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.
Customer: replied 8 months ago.
Thanks Ben very informative I have rated and left a small tip aswel.I look forward to receiving the more detailed advice which I can use for my basis of appeal.My main grounds will be as follows:1. The times in late by minutes resulting in for example a 6hour 52 mins day instead of 7 were more then compensated by overtime on other days of up to 3 hours a time unpaid during the 3 month period in question yet they have been disregarded and not included on the report attached to the letter . This would have more than covered the time they mention and would have created a position where I was basically working for free.2. Management were informed of my situation and times I may be slightly late they said it was fine and would inform me if there was any problem yet they never did and I was never told to fill in any flexi time3. During the period I have evidence of management praising my performance constantly and how well I am working yet my performance is in question.4. No reasons were ever given for unpaid profit sharing bonuses even tho the firms profit had doubled yet they demand the same level of overtime as when I was being paid5 previous appraisals not being amended which would amend the benchmark for this issue and also provide evidence to counter should this have been used as a reason not to pay my bonusDoes this sound ok? anything else you would reccomend?Thanks
Expert:  Ben Jones replied 8 months ago.

Hi sorry our replies crossed and I had not realised you replied as well. Just a couple of comments on the points

If the time keeping is a matter of you being late then even if you made up the time elsewhere they may still try and argue that it is the lateness that is the issue rather than the loss of time

Try to get any evidence where your performance is praised to back up these c,aims

Apart from that as appeal points they are fine so just submit them and see what happens

Customer: replied 8 months ago.
Excellent thank you Ben. Their exact issue was that I was working less thans the required 7 hour days on certain days I.e 6 hours 55 minutes so on that basis I will attempt to demonstrate that despite the personal issues and poor health I ensured that I worked enough to cover the time required weekly when submitting my time sheet and that was the flexibility I asked for from management which is why I approached them prior to this period they mentioned explaining the problems I was facing and until this I wasn't told at any point it was there was a problem. I never requested flexi time from HR but wasn't advised to from management when I spoke to them and asked for flexibility I was told
It's fine no problem. Is that ok you think?With regards ***** ***** yes I have examples that I will include.Thanks
Customer: replied 8 months ago.
Oh and by the way we can start any time between 9 and 10 they're issue is the 7 hour days and whilst on some days it was just short the next day and make up for it and more than exceed the shortfallSorry hope that's a bit clearer
Expert:  Ben Jones replied 8 months ago.

ok tanks so not a lateness issue so you can ignore what I said, if you made up the time elsewhere and there was no evident adverse effect then it should not be such a serious issue for them

Customer: replied 8 months ago.
Perfect thanks
Customer: replied 8 months ago.
Thank you for all your help I now feel much more comfortable approaching this il let you know how it goes
Expert:  Ben Jones replied 8 months ago.

no problem and best of luck

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