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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50511
Experience:  Qualified Employment Solicitor
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The company I was working with for about two years lost the

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The company I was working with for about two years lost the contract to another company. I was TUPE-transferred to the new company about two weeks ago. Just this evening my Manager called me whilst I was at home and told me that the Area Manager said he is not satisfied with my performance so I should not go to work again from tomorrow and that the HR Manager would call me tomorrow to discuss with me. What should I do?

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

How long exactly is your continuous length of service?

Customer: replied 11 days ago.
2 years 8 months
Customer: replied 11 days ago.
Please can we continue to chat?
Customer: replied 11 days ago.
Please I am still waiting to continue the chatting.
Customer: replied 11 days ago.
Please I cannot afford the call now. Can we continue to chat?

yes we will do

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.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the steps if you had to make a claim following a dismissal. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Customer: replied 11 days ago.
My manager called again and said that I should not go to work tomorrow and that the HR Manager will call to discuss with me. Should I defy him and go to work or should I not? I am confused.

Do not go to work if you have been specifically asked not to. If you were thinking of going in for whatever reason, including if you wanted to discuss this matter with them, you should check in advance that they are happy for you to do so. You can always say you wish to go in to talk to them about this and would prefer to discuss things face to face. Does this clarify?

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