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Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long has she worked there for?
There is nothing that would guarantee this person is stopped from undertaking the capability procedure – if they really want to they can carry on with it. However, there are ways to challenge this and to try and register their displeasure at what is happening.
Initially it would be directly approaching the manager in question and raising the concerns that way. If that does not work, it would then be a formal grievance raised with the employer. The HR may be based abroad but they still have a duty to deal with grievances formally and by following the ACAS Code of Conduct.
If a grievance does not work then the options become a bit more serious and risky because the next step would usually be to resign and claim constructive dismissal. However that can be a difficult claim to make and if they are faced with a potential dismissal, then it would be ‘easier’ to claim unfair dismissal once a dismissal occurs, rather than resign and claim constructive dismissal. In that case the employer would need to justify there was a fair reason for dismissal and also that a fair procedure was followed, otherwise the employees could seek compensation.
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