His lack of competence has far from been proven here.Now under the relevant legislation the company could, after being seen to follow all the correct procedures, dismissed this chap anyway for his lack of competence.
Don't forget that if he was made redundant then he would have been entitled to statutory redundancy of 2 weeks per year plus another week or 17 weeks pay in total which would presumably exceed the 3 months severance that he did receive so perhaps the settlement was not necessarily as good as it seems?this guy has got a reasonably good settlement
the employer's were obviously unhappy with this chaps work
to statutory redundancy of 2 weeks per year plus another week or 17 weeks pay in total which would presumably exceed the 3 months severance
Let's be clear about this, the employer's were obviously unhappy with this chaps work. Now under the relevant legislation the company could, after being seen to follow all the correct procedures, dismissed this chap anyway for his lack of competence. Obviously the statutory minimum notice period would apply i.e 4 weeks
Just mentioning it in case it might prove to be relevant. For all we know the company might ultimately want to close the outlet in question in which case redundancy may well be relevant.Firstly, I think that it fairly safe to presume that this chap is going to be replaced. Regardless, it really doesn't sound like a genuine redundancy situation.
No - but it could still be a constructive dismissal case.Secondly, this guy resigned his job so it is not a straight forward unfair dismissal claim.
What about them seemingly not having given written warnings as required by law as far as I know. Also bear in mind what CitizensInformation has to say on this specific matter:But, if it were and if the company had sacked him for his apparent lack of competence, it really isn't that difficult for them to prove incompetence.
Competence
Competence refers to your ability to do your job. In the first place, you need to be made aware of the standards that are expected of you, and these must refer to the job you were hired to do.
Secondly, if you fall short of the required standard, this must be clearly explained to you. This should be done through a formal set procedure. Your employer should also specify what improvements are necessary. These should be achievable and a reasonable timeframe must be allowed for the improvement.
Ultimately, your employer should give you a final warning setting out the likelihood of dismissal.
Based on what has been posted so far there is a strong possibility that the relevant statutory procedures were not followed in this case.Particularly, if there are HR people being seen to apply correct procedures.
Club man,
Firstly, I think that it fairly safe to presume that this chap is going to be replaced. Regardless, it really doesn't sound like a genuine redundancy situation.
Secondly, this guy resigned his job so it is not a straight forward unfair dismissal claim. But, if it were and if the company had sacked him for his apparent lack of competence, it really isn't that difficult for them to prove incompetence. Particularly, if there are HR people being seen to apply correct procedures. So his incompetence could have been easily shown
Bankrupt,
with all due respect you don't appear to know what you are talking about. You admit to not being a lawyer yet somehow are able to offer the opinion that the OP has a very strong case. I would suggest that it is utter folly to say that on the strength of what the OP has stated.
Whilst I accept that I am not an expert on employment issues, I am a law graduate and also a trainee solicitor. So I dare say that I know a bit more than many of the posters.
KalEl,
Wrote: "As far as I know an employer is prohibited from giving a bad reference."
I am afraid you are incorrect. There is nothing in law stopping an employer from giving a bad reference per se. Indeed, if they choose to provide a reference they are obliged to give a fair and accurate one, the only proviso, is that they are of course bound by the laws of defamation. Indeed, if the ex-employer prepares a reference without due care and skill they could be potentially leaving themselves open to an action by both the ex-employee and new employer. See generally Spring v. Guardian Assurances [1995] 2 AC 296. So for an employer to deliberately or negligently provide an ex-employee with an inaccurate reference the ex employer could potentially be creating legal difficulties for themselves in so doing. What this means is that a reference must be fair, accurate and prepared using due skill and care and if that means a rotten reference for the ex employee then so be it.
Club man,
you are obviously missing the point. This guy was not dismissed he resigned. There is possibly a case to be made out that he was constructively dismissed, but I don't necessarily think it is the strongest such case ever.
My point is that if the employer wanted him out they could have followed correct procedures et al and then sacked him. This would of course taken the employer a little longer probably 6-12 months. BUT the end result would have been his 'fair dismissal' in law.
Some people might even see this as bullying and would feel that somebody should be given a genuine chance at improving their work. But such a view would be most naive and would not reflect what is often the reality of a situation. That is to say that if an employer wants to dismiss you fairly they can knit-pick and set targets etc till the cows come home and liase with you as if they are trying to assist or improve performance when in reality they probably already have you P45 ready and waiting.
This really is a moot point anyway, the only reason I brought it up was to show that the employer could quite easily have chosen to 'fairly dismiss' him in law. But the facts of the matter are that this guy resigned and was not dismissed, so the onus is on him to show a constructive dismissal and despite the rent-a-mob attitude to fair play this may well prove problematic in law.
Club man,
...despite the rent-a-mob attitude to fair play ...
How did I miss that point when I said precislely the same thing above?Club man,
you are obviously missing the point. This guy was not dismissed he resigned. There is possibly a case to be made out that he was constructively dismissed, but I don't necessarily think it is the strongest such case ever.
Not sure what you mean by "rent-a-mob attitude" but this comment and a few others (e.g. ) from you in previous posts don't really serve to foster constructive discussion of the topic in hand.But the facts of the matter are that this guy resigned and was not dismissed, so the onus is on him to show a constructive dismissal and despite the rent-a-mob attitude to fair play this may well prove problematic in law.
An employer is not prohibited from giving a bad reference, but good practice nowadays is to either give a good reference (where deserved) or to give none at all. Giving a deserved bad reference, or an undeserved good reference, potentially exposes the employer to legal action, as you have alluded to. So the advice bankrupt received was correct, at least in terms of the action he took.
For this reason some employers no longer give references, to anyone. A less extreme variant is to give everyone a 'reference', but restrict it to a statement of facts ("A was employed by B Ltd from Date X to Y.")., with no comment on aptitude or performance.
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