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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50147
Experience:  Qualified Employment Solicitor
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I've been employed since 2012, today the head of HR took me

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I've been employed since 2012, today the head of HR took me in a room and provided me with a letter covered under act 111a which essentially says, due to your performance we would like to offer you a settlement to leave (next Friday) or a performance management process, the performance reasons sighted are arguable but most infuriating is the fact that i saw a job advertised by a recruiter which had a similar job description to mine, I called up and it was for the same company, same title basically my current job - can they do this ? they've predetermined the outcome and decided I'll be going even if I opted to go through the performance process ???
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Have you been taken through a performance procedure before?
Customer: replied 1 year ago.
No I haven't
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 their 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 use 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 this would depend on which of the above reasons they used to dismiss. Whilst performance (or capability) is a potentially fair reason for dismissal it must be approached fairly and a pre-determination that they will be dismissed before the process has even begin will likely make any dismissal unfair. The employer can propose a settlement agreement without fear of you trying to argue that they have decided to dismiss you, but if there is other evidence such as your job being advertised and there is no plausible reason for it (such as an identical job being created alongside your) then that could be used as evidence against them in the event you are dismissed. This is your basic legal position. I have more detailed advice for you in terms of the options you have now based on the information known to you, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Thank you. There are a few of options you have:· Consider the settlement agreement further and perhaps negotiate with them for an improved offer. If you know they are likely to remove you then it may be best to get out before being pushed out but do not settle for anything and only leave for the right offer· You can stay there and face the performance procedure. If it results in dismissal you can consider the unfair dismissal route in the employment tribunal. You have 3 months to do this.· You can just resign now and claim constructive dismissal – this is not an easy claim though so you may better off being dismissed rather than resigning.