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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49851
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been employed for 2 years now with my current employer.

Customer Question

I have been employed for 2 years now with my current employer. At the commencement of employment there was a verbal agreement surrounding my job role in terms of working hours, hourly rate of pay, office location, and duties relating to the job. Today, I was served a written notice of unsatisfactory conduct regarding an incident which took place 10 months ago. In essence my employer is blaming me, and holding me responsible for a failing in one of the businesses processes. I have 7 days to respond in writing if I wish to appeal. What can I do?
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. What would you like to achieve here?

JACUSTOMER-e00crkpm- :

I am concerned that this may be the first step in a dismissal process. I want to ensure that my job is as safe as it can be, within employment law, and bearing in mind that at the commencement of my employment with them there was no job description or job profile given to me nor any company guidleines paperwork or document/s.

Ben Jones :

OK, thank you, please leave this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Expert:  Ben Jones replied 4 years ago.
Many thanks for your patience. Whilst an employer is able to take formal action for poor performance, this needs to be done in a fair and reasonable manner.

If you did not have any specific job description or duties to start with then what was expected of you would have been implied over time, based on what you normally did in your job. In a sense your duties would have evolved over time and become implied through custom and practice.

What is concerning is that the employer is taking action for something that occurred 10 months ago. If they knew about this at the time then taking action now would be unreasonable and too late. They should have taken action without unreasonable delay and waiting for 10 months is likely to be too long. However, if they only found out about this recently then taking action now could be acceptable.

In terms of a potential dismissal then an employee's alleged 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 hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you and feel free to bookmark my profile for future help: