The starting point is that by having more than 2 years continuous service, you are protected against unfair dismissal. This means that the employer has to show there was a fair reason for dismissing you 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:
· 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
· Was the employee made aware of the problem and given realistic timescales to improve
· Was the employee provided with the necessary support or training
· Was the employee’s progress reviewed during the monitoring period
· Was the employee told of the consequences of failing to improve during the monitoring period
· 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. There are two requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the date of termination.
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