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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 70792
Experience:  Qualified Solicitor
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I am on a performance plan that’s not working. My boss won’t

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I am on a performance plan that’s not working. My boss won’t listen. He has not offered me another job I am not trained for and cannot do
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: Not a Lawyer. No HR department
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: 34 years service employee
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I have a written warning handed to me in an envelope

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.

I am sorry to hear of the situation you are in. What is your specific question in relation to this please so that I can best advise?

Customer: replied 5 days ago.
Well they won’t even look at the work I have done towards the performance. The other job offer is a sales job I have lots of training in production

Thank you, ***** ***** is your specific question in relation to this please so that I can best advise?

Ben Jones and 2 other Law Specialists are ready to help you

Hello, I was wondering if you have had a chance to consider my query above please? I will need your response before I provide an accurate answer to your situation. Thank you and I look forward to hearing from you.

Without the requested information, I can only provide you with the following general response, which will hopefully still answer your query.

First of all, I am sorry to hear about the situation you have found yourself in.

If you feel that you are being treated unfairly, then the first thing you need to consider doing is raising a formal grievance with the employer.

You can get a detailed explanation of the grievance process here:

https://www.acas.org.uk/grievance-procedure-step-by-step

In summary, an employee is expected to submit their concerns in writing and send them to their line manager, or whoever is nominated as the person to send grievances to under an official workplace grievance policy.

The complaint should include details of what the grievance is about, any evidence that may exist which is relevant and also what the employee wants their employer to do about this issue.

Once the grievance has been submitted, the employer is expected to arrange a formal grievance hearing, inviting the employee to attend and discuss the nature of their complaint. The meeting is also as an opportunity to ask for further clarification or information, as required.

Following the meeting, the employer will take time to consider all the issues and evidence and then make a decision, communicating it to the employee. If the outcome is not to the complainant’s satisfaction, they can appeal and get a second opinion from a different person assigned by the employer to consider the appeal. Once the appeal is also completed, that brings to an end the formal grievance process and there is no option to escalate it further internally.

In terms of your general rights, particularly if the employer is eventually going to look at potential dismissal, they are as follows:

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.

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(###) ###-####

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.