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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50160
Experience:  Qualified Solicitor
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I run a small business with 9 employees. About a year ago,

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I run a small business with 9 employees. About a year ago, the next most senior person to myself, pressured me relentlessly to promote her to an associate director and within weeks of that promotion, she informed me she was pregnant. Thereafter, a difficult pregnancy and maternity leave ensured that she was of little utility to the company and instead of her promotion helping to take off some of the managerial and operational workload, the opposite was the case. In the meantime, I lost 3 key personnel in quick succession and a 4th is scheduled to leave a week after we return from the Christmas break. While I have manged to replace the more junior of the staff who exited, I do desperately need the services of a senior operative, to help return the company to stability and free me up to do the vital business development upon which the very existence of the company depends. Sadly, my colleague has shown little or no interest in the predicament of the company; while it is understandable from her point of view that , she focus on her child who has some severe health challenges, she has not made any reliable childcare arrangements, which means that every time she or her child is unwell, she is unavailable to undertake her duties. While this situation might be tolerable for a short period, there seems no end to and from an initial 3 days a week that was agreed for her to work, she is proposing to take an unscheduled holiday after we return from the Xmas break and then work just 1 day a week. I desperately need the services of a competent right hand person and while she does have the required skills to fulfill that function, it is of little value to the company if she is not physically available to do the work. I would prefer to avoid the further upheaval of replacing her, but the current situation cannot continue for much longer without putting me out of business. Please help!!!!
Hello how long has she worked there for?
Customer: replied 2 years ago.
For Ben Jones, Solicitor. She has worked here for 3 years.
Do you know what would happen if you deny her the opportunity to go down to 1 day per week - would she leave or remain on the current 3 day arrangement?
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Hi I tried calling a few times but there was no answer. Can you please let me know when is a convenient time for you?
Customer: replied 2 years ago.
Hi, I noticed 2 missed calls from withheld numbers. Sorry, I had been in a meeting and couldn't get away. Please call me from now on and hopefully, we'll be able to get to the bottom of this matter, or at least make some headway.
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 an employee's "skill, aptitude, health or any other physical or mental quality" and must relate to the work that they were employed to do. In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period. Generally, the reasonableness of such dismissals would be measured against the following criteria:· Did the employer have reasonable belief in the employee's incompetence;· Was the situation investigated and was the employee given the opportunity to voice their side of the story;· Was the employee aware of what was required of them in terms of satisfactory performance;· Were steps taken to minimise the risk of poor performance through training, supervision, etc;· Was a proper appraisal conducted and was the problem identified in a timely manner;· Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;· Did the employer consider offering alternative employment. The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged. The first step is to appeal directly to the employer within the allocated time for an internal appeal. After that the only viable option is to consider a claim for unfair dismissal in an employment tribunal, subject to having at least 2 years' continuous service. There is a strict time limit of 3 months from the date of dismissal to issue such a claim.