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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 75057
Experience:  Qualified Employment Solicitor
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I have a query re a possible situation at my work, I have

Customer Question

Hi I have a query re a possible situation at my work
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: I have discussed this with my line manager who is also the person whom I had an unformal Informal meeting with yesterday
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
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I don’t belong to a union
Submitted: 13 days ago.
Category: Employment Law
Expert:  Ben Jones replied 13 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 13 days ago.

Please provide some more details of your circumstances. Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you as soon as I can. Thanks

Customer: replied 13 days ago.
I am a director (not a shareholder) with an small business and have been employed approx 10 years and have held the position of director for 4. The post had a varied remit and during the last two years workload had become unworkable. I had meetings in Oct/Nov last year then in January and again in April in July. Some progress was made taking additional staff on however new staff went on long term sick and I had to make one redundant and left me covering 5 roles in one. Earlier this year I spoke to the doctor about stress, anxiety and I was out on medication referred to talking therapy and I also spoke to the board in July about reducing the responsibilities within the large role. What led me to this conversation is out of the blue I received a call yesterday from the ceo to have a informal Open discussion about concerns about my work load. It seemed that notes where taken and now have been formalised in an email for my commentary. I believe that there is some advice being received and could lead to capability or performance review
Customer: replied 13 days ago.
I instigated the meetings with two board members to make them aware off my circumstances. I covered finance, hr, quality H&S and HR and payroll and customer services. They hired a team lead to help out in jan 21 to help out who lasted 9 days and was off sick until March. I then had to make redundant one other team member. Hired a finance assistant as I had been completly on my own since July 20 due to finance manager being made redundant at the time and we closed the office and have been working from home since March 2020. It has been a very difficult 17-18 months and I do believe that the board expect that after the last meeting in July where I asked for all responsibilities apart from my main role in finance to be removed that thing would flip over night and be resolved. I also am on medication from the doctor to help with the anxiety
Customer: replied 13 days ago.
The meeting was concerns about communication missing deadlines and essentially not being myself. The email with the notes was very formal and being in a position where I have had to do this myself to another employee in the past is why I believe this was more than a general conversation. Actions for me to follow up where out in place and I just want to know where I stand with my employer if this is going to develop into a performance review with a possibility of dismissal
Expert:  Ben Jones replied 13 days ago.

Thank you very much for clarifying. First of all, I am sorry to hear about the issues you have experienced in your situation.

An employee's poor performance is a potentially 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 an Employment Tribunal would look 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.

Additionally, if it id clear that your workload was unreasonable and that has a lot to answer for the alleged poor performance, the employer should accept some responsibility and address these specific issues before going down any potential dismissal route.

If there is evidence that the employer has not followed a fair procedure as outlined above, an appeal can be submitted to the employer immediately after the dismissal outcome. If the appeal fails, a claim for unfair dismissal can potentially 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. The next steps to start the process would be to initiate what is known as an ‘early conciliation’ procedure through ACAS, either online by filling in the following form (https://tell.acas.org.uk/find-a-solution-to-your-employment-dispute), or by phone on 0300(###) ###-####

Customer: replied 13 days ago.
Thanks for the above information. In relation to the open conversation followed by email yesterday with my CEO there has been no mention other than a personal concern about my change in nature. It seemed a very formal approach to a friendly chat with objectives and actions to be taken from the meeting. Am I right in thinking that this could be noted in a personal file or does some indication have to be provided to me about the intention of the meeting?
Expert:  Ben Jones replied 13 days ago.

If this is going to be held on your personnel file and potentially used against you in the future, then you should have been given prior notice and also informed of this and the repercussions of it.

Customer: replied 13 days ago.
Okay so at this point I have arranged a follow up meeting with the CEO next week to discuss the email received and I can ask and question the purpose and means for this conversation and what will be done with it. My employer has not offered any support in terms of monitoring or training records etc and have admitted in the email avoiding communications with myself over deadlines due to not wanting to make me any more anxious. I have explained the purpose of moving the additional workload was as it was only ever there during Covid and a temporary solution and that no clear timescales have been laid down other than by myself yesterday to contribute towards clearer communications and timescales
Expert:  Ben Jones replied 13 days ago.

Thank you very much for clarifying. If they have not offered training, support etc then it would still be useful for you to remind them of this and of their obligations to ensure that you are treated fairly in the circumstances.

Expert:  Ben Jones replied 12 days ago.

Hello, following my main response above, I just wanted to check that everything was clear. If you have any further queries about this issue, you can reply to me at any time on this portal and I will be happy to help. Thank you.

Customer: replied 12 days ago.
Thanks Ben very much appreciated and I will keep that in mind
Expert:  Ben Jones replied 12 days ago.

You are most welcome. If you have any further questions about this, please do not hesitate to get back to me and I will be happy to help. All the best