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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 63320
Experience:  Qualified Solicitor
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I work for a company selling cars and I have not hit the

Customer Question

Hello, I work for a company selling cars and I have not hit the target for a couple of months. I have said that i have not been allowed the same resources or discounts etc (and can prove) but they are not interested and i have a formal meeting on Friday to see if they are going to set me a target related disciplinary.
JA: Have you discussed the disciplinary action with a manager or HR? Or with a lawyer?
Customer: I wanted to record it, to which they said no.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Not to a union yes employeed coming up to 3 years
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No, just after advice on where i stand and what i need to make sure i do. Just incase this is constructive dismissal. had customers taken out of me and past to others etc
Submitted: 4 months ago.
Category: Law
Expert:  Ben Jones replied 4 months ago.

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

Expert:  Ben Jones replied 4 months ago.

So how long have you not had the same access to the company's resources and discounts ?

Customer: replied 4 months ago.
Ive been with the company a few years and the senior sales executives seem to get the information that they need and access to other information.
I have quotes that show others with bigger discounts
Customer: replied 4 months ago.
I also have information showing customers transferred out of my name and handed to a colleague. therefore effecting my numbers, but helping his. Plus loss of commision etc
Customer: replied 4 months ago.
Cant talk on the phone, they have a no phone during working hour policy
Customer: replied 4 months ago.
I have been in the car trade for 22 years now and i have seen a constructive dismissal before and this very much seems that way, i want to know what i need to do to give me the strongest argument to show/prove this
Expert:  Ben Jones replied 4 months ago.

OK no problem and 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.

Expert:  Ben Jones replied 4 months ago.

Many thanks for your patience. An employee's poor performance is a potentiality fair reason for disciplining and even 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 – if the tools you could use to improve your performance were removed or limited, you can use that against them

· 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.

In general it is preferable to be dismissed rather than resign and claim constructive dismissal because the burden of proof in dismissal is on the employer, whereas in resignation it is down to you to prove your claim.

Does this answer your query?

Expert:  Ben Jones replied 4 months ago.

My response to your query should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to it? If your query has been answered I would be grateful if you could please take a second to confirm this by replying on here. Thank you

Expert:  Ben Jones replied 4 months ago.

Hello, not sure if you are having trouble seeing my posts? I have not heard back from you since posting my answer and just need to know if your query has been resolved. If you could please post a quick reply to confirm I would be very grateful. Thank you