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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 69008
Experience:  Qualified Solicitor
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I would like to know my rights on a potential performance

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JA: Hi. How can I help?
Customer: I would like to know my rights on a potential performance disciplinary?
JA: Was the disciplinary action discussed with a manager or HR? Or with a lawyer?
Customer: with a manager
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: with employees and contractors
JA: Anything else you want the Lawyer to know before I connect you?
Customer: not for now

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.
Hi Ben
I have been working there for 3.5 years

Thank you. An employee's poor performance is a potentiality fair reason for disciplining and even a 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 such action was reasonable 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 action 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 this

The above are just some examples of what a tribunal would at when deciding the fairness of the employer’s actions. If there is evidence that the employer has acted in a rather heavy-handed manner and jumped straight to a formal decision 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 this eventually results in termination, 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?

Customer: replied 10 months ago.
Hi Ben
Customer: replied 10 months ago.
that answers my question. The answer to most of the questions above is no. They basically took my of my project about 3 weeks ago. The put a settlement offer in front of me last week Monday which I immediately declined. I have been called in today where an increased offer was mentioned and said but if we can't agree on the new increased offer that we have no other choice to follow the formal performance process and will start the process on Monday. I felt i was threatened today and by that statement. I am feeling very uncomfortable and wonder if i should get a lawyer to involve by sending them a formal letter if we can't agree on a settlement offer and they want to go ahead with the formal process? Any thoughts?

Whilst you can use a lawyer to send a letter, I am not always confident that achieves much. The letter could still come from you and have similar content and you would save yourself a couple of hundred pounds that it would have cot. Also, a lawyer cannot make them o anything, they can just send letters – only once a claim is in progress can they get really involved. But the option is there…

Customer: replied 10 months ago.
Ok, I think I get what you are saying. If we cant come to a settlement agreement and they are going to proceed with the formal process, I should then right to them a formal letter of grievance based on the fact they they have not got any evidence and take it from there. Proceed with the formal performance process in the meantime?

yes correct, then the eventual outcome is up to them, if they want to dismiss they can also do that but you still have rights then to challenge them if needed

Customer: replied 10 months ago.
Ok that good to know and from your experience, how often does it happen that a settlement agreement cannot be agreed. The formal process starts and then the employee get legal advise, only then for the company to decide they will agree on a settlement the employee wants?

Impossible question to answer really – depends on the employee and employer, the issues at hand, how far apart both parties are and so on – you cannot gather statistics on that.

A settlement can be negotiated at any time to be honest, there are no limitations on that – it can start now, it can start just before dismissal, it can start after termination

Customer: replied 10 months ago.
Good to know.I am pretty sure they just want to get rid of me for the sake of it

That may be the case but it is still speculation at present. Time will tell really. But do let me know if you need me to clarify anything else in the meantime please?

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