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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50956
Experience:  Qualified Employment Solicitor
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I was put on an informal development plan at the end of

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Hi, I was put on an informal development plan at the end of February 2018.
I've joined my employer in January 2016 and subsequently the company was taken over by another organisation. I'm still working for this business then. Would the time I've worked for the company I joined in Jan 2016 count for the total tenure with my current employer? I'm working hard to pass the informal plan but feel that I was put in it for political / personal reasons rather than performance. I've also been without a manager last year and was only given a job spec recently. I feel the next step might be a pip. My question is, having worked for them for 2 years, can or are they likely to dismiss me? And what would be my options?

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Were you transferred under TUPE from the old employer to the current employer?

Please note as it is the weekend I am not always available and may not reply fully until tomorrow, thanks

Customer: replied 4 months ago.
Hi Ben, yes appreciate it is the weekend and please do not feel you have to reply before Monday. I don't want to spoil your weekend.
And yes I was TUPEd in October 2016.
Marco

Hello again, when you transfer under TUPE, your continuous service carries over and therefore you can count the full length of service from January 2016 as your total length of service. You will therefore be protected against unfair dismissal and whilst they can still dismiss you if needed, they need to show there was a fair reason for doing so and also follow a fair procedure.

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 their skill, aptitude, health or any other physical or mental quality and must relate to the work that they were employed to do.

Apart from identifying the poor performance, the employer must also follow a fair procedure, particularly showing that dismissal was a reasonable decision in the circumstances. An important element of this will be the extent to which the employer has clearly communicated the requirements and expectations of the role to the employee or, where applicable, has provided necessary support and training.

Generally, the reasonableness of dismissals for poor performance would be measured against the following criteria:

{C}· {C}Was the situation properly investigated and the alleged poor performance issues identified – this would include looking at the employment contract, training records, appraisals or other performance monitoring criteria

{C}· {C}Was the employee made aware of the problem and given realistic timescales to improve

{C}· {C}Was the employee provided with the necessary support or training

{C}· {C}Was the employee’s progress reviewed during the monitoring period

{C}· {C}Was the employee told of the consequences of failing to improve during the monitoring period

{C}· {C}Was alternative employment considered to avoid the need for dismissal

The above are just some examples of what a tribunal would at when deciding the fairness of such a dismissal. If there is evidence that the employer has acted in a rather heavy-handed manner and jumped straight to dismissal without acting fairly, their decision could potentially be challenged.

If there is evidence that the employer has not followed a fair procedure as outlined above, a grievance can be submitted to the employer to formally complain about these issues, assuming the employment still continues. If termination has already taken place, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the appeal fails, a claim for unfair dismissal can be made in the employment tribunal.

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Customer: replied 4 months ago.
Thanks Ben. I wasn't expecting your answer today so you exceeded my expectations.
I think it is very likely that I'll have to submit a grievance. But I won't know this until at least 26/03.
My argument will' be based on the following points:
1) I was left with a lack of support for a year as I had no manager (an interim one was appointed after the informal pip started; probably as a result of me pointing this out in writting).
2) my colleagues were given opportunities to discuss personal development plans. I did not get the same treatment.
3) I've provided evidence that I addressed areas pointed out in the mid-year review in Sep-17, which were considered to be shortcommings. They are now pointing out other reasons which I don't agree and that I was never been made aware of before.
4) unreasonable expectations: I've been doing 2 different roles for a year as well, and told that I should allocate 50% of my time towards each, which is nearly impossible as both are very demanding. Recruitment has been underway for some time to find a suitable candidate to feel the vacant role, however that has not materialised yet. In addition, on occasion I'm even asked to do work that it's other teams' responsibilities.
4) I was pressurised to agree to the informal pip in a meeting that lasted only 15 mins, where the manager I met was unable to give concrete examples of why my performance was not up to standard required. I asked for 2 or 3 days to think and familiarise myself with the process, but he said that was not possible as he needed to submit the agreed pip to HR that same Friday afternoon. He just put my name in the document as a digital signature and submitted it.
5) My role has changed slightly in May-17 and I was only given a new one shortly before the informal pip started despite having asked for one at mid-year review.
Do you think those are reasonable claims to put in a grievance? I think a fair process would be to fill the vacant positions (manager and the other role) and assessed my performance over a reasonable amount of time.
Marco

Absolutely, any of these grounds can give rise to a grievance and collectively can give you even more reasons to do so. There is no immediate rush to do so but obviously once you know you have good grounds to do so, do not unreasonably delay it going forward. See what the grievance outcome is and then if you disagree with it you can formally appeal it, before considering your options.