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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 55249
Experience:  Qualified Employment Solicitor
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When I was just about to leave the office last Friday I was

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When I was just about to leave the office last Friday I was asked by my boss did I have 5 minutes? when I went into the room with him the HR manager appeared! I was then presented with a settlement agreement, when I questioned this I was told this was due to performance issues! There have been no disciplinary procedures initiated to date, what happens if I do not sign and refuse to accept the settlement agreement?

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

How long have you worked there for?

Customer: replied 10 months ago.
Over 5 years
Customer: replied 10 months ago.
Hi Ben, Over 5 years

Thank you. No one can force you to accept a settlement agreement and you have the legal right to refuse to accept or even entertain one.

However, if you refuse it, the employer can still proceed with any formal performance action they had in mind. As you have been there for 5 years, you do have protection against unfair dismissal, so it does mean that if they were looking at dismissing you, they must ensure that a fair procedure is followed.

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 how to make an unfair dismissal claim if needed. 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 10 months ago.
Have pressed call me but not sure if it has responded correctly***********

Sorry I am not available for calls today so please reply on here for further information, thanks

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