Thank you. If an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them the employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.
According to the Employment Rights Act 1996 there are five separate reasons that an employer could rely on to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and that the outcome was one that a reasonable employer would have come to in the circumstances.
So they cannot just approach you and decide to dismiss you on grounds of capability without there being a fair procedure. This would involve time, especially for performance reasons where they need to identify the areas for improvement, give you time to work on them and should only consider dismissal if there is an ongoing failure to improve.
However, they can offer you a settlement agreement and if you reach a mutually acceptable deal, you can end your employment through it, although no one can force you to accept it.
So if they proceeded to dismiss you now, without a settlement agreement, simply by saying you are not good enough and without following a fair procedure, the dismissal is indeed most likely to be fair. But if the right deal came along and you manage to negotiate something with the settlement agreement that may also be an option instead of the expenses, time and resources of going to tribunal.
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