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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50161
Experience:  Qualified Employment Solicitor
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Jones You kindly assisted me previously with questions

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For Ben Jones
You kindly assisted me previously with questions arising from my brother's dismissal. He wrote to his ex-employer as you recommended, and they have now replied, and have totally fabricated the circumstances. They are now saying that he was dismissed for bad sales performance, rudeness, slamming down phones and not engaging with the business. If this were the case, why did they not give him written warnings for these things? They did not follow any form of dismissal procedure, and terminated his contract whilst he was off work seeking the treatment that they told him to, and he has letters to support that he was dismissed so that he could "sort out his difficulties", which they seem to have forgotten. They have conceded that he was not given an opportunity to appeal, and have offered him a date in January to do so. My question is, is he obliged to accept this "offer" or should he now proceed with approaching ACAS as firstly his ex-employers did not follow any dismissal procedure and secondly, they are fabricating their version of events.
Thank you very much
Hello again thank you for getting back to me for further advice. I know there was an issue with rating some of the outstanding questions previously and thank you for sorting that out last time. I note that there is still one outstanding question waiting for a rating and would be grateful if you could please close that too. Link below:
Now in terms of the latest query he does not have to go through an appeal process and if he wanted to he could go direct to ACAS. However remember that he cannot claim for being dismissed without a fair procedure being followed – this only applies to employees wth over 2 years service. He can only claim of he was disabled and was dismissed for that reason. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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Customer: replied 2 years ago.

For Ben Jones

Hi, thank you for your response. I have attached 3 letters that my brother's ex-employers have sent to him. The latest one is in reply to his stating that he feels that he has been unfairly dismissed because of his condition, and they have consequently done an about turn on their reason for his dismissal.

My question is, do you think that their current argument and manipulation of the facts as written (but also discussed at length on the phone) would carry any weight at a tribunal, as it seems to me that they are panicking, handling it in a heavy handed manner and causing him further anxiety. Surely if his performance was so bad, although I assume, they were not obliged to give him a formal verbal/written warning as less than 2 years' employment, there would have been specific reference to this as the reason in his initial letters? Also, are they able to insist about evidence of his medical records prior to issuing proceedings, as per the last paragraph?

Many thanks

Attachment: 2015-12-14_130054_jak.pdf

Hello, it is possible that a dismissal could be fair if it was not related to his disability. I am however not sure that their claim they did not know of his disability prior to dismissal is true – they did after all state that they believe he was struggling with this before he raised it as a possible reason for the dismissal. That does not automatically mean that the dismissal was unfair but it will raise questions. A good example of performance and disability dismissal is provided by the CAB: “You work for a small company. Your employer starts to manage your performance when your sales figures start to fall. You tell your employer you've been diagnosed with repetitive strain injury which is slowing you down when using the IT system. Your employer says she can’t afford to buy accessible IT equipment and after your figures continue to drop, you're dismissed. Your dismissal is because of your reduced performance. This is something which is connected to your disability. Your employer tries to justify the dismissal by saying that the business operates on very small profit margins and she needs to employ people who are high performers. However, it would not have cost the company very much to purchase the accessible IT equipment, and it could have applied for a grant to do so. It would have been reasonable to buy the equipment and it would have enabled you to keep your job. The dismissal is therefore likely to be unlawful discrimination.” So as you can see performance-related dismissals, if due to a disability, it can make the dismissal unfair or be discriminatory. As to requesting the medical evidence – he does not have to disclose that now, but if he was to make a claim he will likely have to as part of the documents disclosure process where he supplies evidence to back up his claim.
Customer: replied 2 years ago.

For Ben Jones

Thank you for your excellent reply, but I cannot see where to rate your answer on this occasion? There doesn't seem to be the rating tab that has been there in the past?

Kind regards

Hello it appears your rating has gone through, so no need to worry about it. Thank you