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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49820
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Please help! I started working in a company in may 2014,

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Hi, please help! I started working in a company in may 2014, got given accounts in Q1 in August to work with. Had hardly any sales since January, escalated my concerns to my manager end of March, he said he could see what could be done about helping me, no formal meeting took place. He went on holiday and in April 21, I received a recorded letter from him ( while he was still officially on holiday)inviting me for an investigation letter due to my low performance with Hr taking notes and him being there.. On the same day I get a letter from Hr congratulating me on my pregnancy (I am already 6,5 months) and a survey to do risk assessment. Informed that earlier in January that I was pregnant and that I was planning on going on maternity leave on 1st of July but there was no risk assessment done or any congrats from them until that day. My questions are what are my chances of being dismissed 2 months before gong on maternity? Is it possible at all to dismiss me on the grounds of low performance? Many thanks. After the investigation meeting took place they plan to invite me next week for official hearing and may be take disciplinary action
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Do you think any potential dismissal may be linked to our pregnancy?
Customer: replied 2 years ago.
Hi Ben, thanks for helping me. Of course they would not put it this way as it would be a direct discrimination. So re. My pregnancy they only congratulated me, but very later, at the end of of April even though they knew about it in January. However, Iay suspect this. My sales figures are low and I wonder what chances I stand of improving them. What surprises me is that my boss did not meet me to discuss my email to him where I raised all our concerns but met me with HR in such an official way. I am yet to see what "punishment" them come with after our investigation meeting as during that meeting they did not say a word but only listened to me. Thanks
Good morning, 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. So legally it is possible to be dismissed at any time for lack of capability, even if you are pregnant. However, the key is that the decision should not be linked to your pregnancy in any way, whether directly or indirectly and that the poor performance should not be as a result of you being pregnant and perhaps unable to do parts of your job as a result.
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, and also if it appears that this was all done as a result of your pregnancy and used as an excuse to remove you, 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 automatic unfair dismissal and/or discrimination in an employment tribunal. 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
Customer: replied 2 years ago.
Thanks so much Ben, I fully understand however is 2 months enough to meet my performance targets and compete the assessment of let s say my improvement plan? I have a feeling they are hasting it so they could proof my in capability before I wanted to go on maternity, also if withinh the next 2 months I will decide to go officially in maternity leave, can they dismiss during the leave or had to wait till I return 12 months later to do? I think my position is quite vulnerable as I have not worked for them for 2 years but only 1 year- many thanks and this is my last follow up question
there is no specific time in law during which your improvement must be assessed - it depends on the job really, how soon results can be seen, what would be reasonable in the circumstances etc. You may not have 2 years' service but dismissal on grounds of [pregnancy is automatically unfair regardless of length of service so if the employer cannot justify the dismissal being fair and reasonable on grounds of capability then it can be unfair anyway. If you go on maternity and as a result your performance or improvement can no longer be measured then the employer would really be expected to delay this until you return - for example they can't say that your improvement was being measured and just because they can no longer do that as you are on maternity they will proceed with the dismissal anyway - that will most likely be unfair.
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