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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 66633
Experience:  Qualified Employment Solicitor
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I have been working at the same Company for almost 10 years,

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Hi, I have been working at the same Company for almost 10 years, carrying out the same role. Three years ago, I was asked to take on another account, previously managed by a senior manager which would double my workload. At that point I asked for a raise and a promotion. I got the raise, but not the promotion. Two years later, it was decided to take one of these two accounts and give it to another member of staff, as it was too much for one person to manage both, leaving me with my original accounts to manage. As a complete surprise to me, two years ago, during my performance review, I was rated as a marginal performer for the first time - (previously my ratings had been effective performer and very effective). The line manager who rated me as that left and I now have a different line manager, who has upheld the marginal performer status and has now gone one further after a year of having a performance plan in place, a 6 month review where I have evidence in writing to say there had been good improvement on 2 of my 4 performance areas, to say I am still not performing to standard and will now enter a formal performance process with a view to eventual dismissal if I don't improve. My view is that my performance has improved over the years as I have gained experience in this role, although I am still not getting the support I need to succeed to the level expected, particularly not when it comes to planning and presentation. I cannot find any advice online about employees that have been in role for a long time suddenly being performance managed out of a business and I am sure this is not legal?!
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: My first meeting informing me that I was to be put on a formal performance procedure was yesterday evening. I sent an email last night to HR, my line manager and my line manager's manager stating I wasn't happy, I have lost trust and I don't feel I have had the support needed to succeed. I hardly slept at all last night worrying as I need this job and am passionate about it - I am worried that they can take me through this process and despite my best efforts can still dismiss me?
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am an employee - full time and have been since May 2010
JA: Anything else you want the lawyer to know before I connect you?
Customer: I don't think so :)

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

So has your employer provided you with details of the areas where they feel you have under performed?

Customer: replied 8 months ago.
this was provided to me in January, when I was asked to fill in the document with ways I felt I could demonstrate my level of performance. My line manager and I have had regular meetings to discuss progress and I have an email from him stating that I had made "good progress" on two of the four areas
Customer: replied 8 months ago.

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience. It is certainly not illegal for someone to be performance managed out of a business, regardless of how long they have been in a role, as long as the employer can justify it was necessary and done fairly.

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.

Does this answer your query?

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 8 months ago.
Thank you for your help.

All the best