Performance Issues

You may face the situation where your employment may be at risk of being terminated because of performance issues.

Performance issues can apply in two ways. Either, your health is preventing you from being able to undertake your job or your employer is alleging that you do not have the skills and ability to do your job.

Health

Often individuals are faced with dismissal by reason of performance issues caused by their health when they are on long term sick leave. This often, in turn, raises issues of disability discrimination.

For health related performance dismissals to be the basis for your employment to be brought to an end, you often need to be off work for a long period of time. Alternatively, employers may fairly dismiss employees for short-term intermittent absences provided they follow a reasonable procedure giving adequate warning to the employee that their employment may be at risk.

In both long-term and short-term sickness cases an employer may require a medical report to be prepared either by your GP or an independent expert medical adviser appointed by your employer. The report will usually focus on the reason for sickness absence and the level of attendance that the medical expert believes you will achieve in future.

If faced with this situation, we will be able to advise you on your rights and options. That will often include how you can best communicate and correspond with your employer in a way that best protects your interests. If your medical condition amounts to a disability for the purposes of the Equality Act 2010 then your employer will be under a duty to make reasonable adjustments. For example, a common adjustment employers have to make for disabled staff is to accept a greater level of sickness absence than they would for a non-disabled person. Disability discrimination law is a complex area and we can provide you with sound advice to ensure your position is properly protected.

Skill/Ability

If you are faced with performance procedures (sometimes known as a performance improvement plan or PIP) owing to an alleged shortfall in your skill and/or ability, we are able to advise you on the process being followed and, in particular, whether there is sufficient grounds for such action to be taken and therefore if you may be able to challenge your employer’s actions.

Performance procedures are often quite lengthy and, like most employment procedures where dismissal may be the outcome, stressful.

Our employment solicitors will be able to review the allegations being made against you and understand whether there is sufficient justification for those to trigger a warning or, worse, the possible termination of your employment.

You should be given the opportunity to challenge the allegations and also given sufficient time to improve your performance to meet reasonable targets. Again, ensuring you are being treated fairly and properly will all form part of our advice.

It may also be that there are some underlying issues that are causing any alleged poor performance that may link to some form of discrimination which we can consider and advise you further on. If there are, then it may be appropriate for you to raise a grievance, and again we can advise on you on the most effective way you might do that to.

More from the Downs Blog

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Even after the recent Government announcement of another national lockdown we remain open for business and are here to help you.

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Read articles from Downslaw

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Key2Law (Surrey) Ltd v De'Antiquis [2011] EWCA Civ 1567

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The Government has issued draft legislation on it’s proposal to increase the qualifying period to claim unfair dismissal from one year to two. The Order is succinctly known as The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, and can be viewed here http://www.legislation.gov.uk/ukdsi/2012/9780111519974

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