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Category: Employment Law
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I am an employer and have a query regarding dismissing an employee

Customer Question

I am an employer and have a query regarding dismissing an employee within the first year? Can you help?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. What is your specific question about this?

JACUSTOMER-exh9lcub- :

I have an employee who after an informal meeting to discuss numerous mistakes and general attitude in the office has emailed afterwards wanting a full breakdown of all her errors to backup what I verbally told her she could have cost the company as a result of these errors. She is also refering to a 2 week sign off period she recently had for depression and is questioning whether we should have given her the responsibility again after despite holding a 'fit to work' interview. I do not want her in the office as we are small team of 5 and she is causing so much trouble and energy. She has been there for a year on 22 October.

Ben Jones :

Does she have a contractual notice period?

JACUSTOMER-exh9lcub- :

After probation of 3 months she has to give 2 months notice but contractually I have to give her 6 weeks.

Ben Jones : Does the contract say anything about paying her in lieu of notice?
JACUSTOMER-exh9lcub- :

The company reserves the right to waive notice periods and to make full payment in lieu of notice?

JACUSTOMER-exh9lcub- :

Oh make a payment not full

Ben Jones : Ok great. You can terminate her employment quite easily because she does not have enough service to be protected against unfair dismissal. All you have to do is pay her the contractual notice period she is entitled to, in this case 6 weeks, as well as any accrued holidays up to the date you dismiss. You have the right to pay her in lieu of notice and require her to leave immediately without allowing her to work through this 6 week notice period
JACUSTOMER-exh9lcub- :

Great but this concerns me due to the content of her email..If their employment commenced before 6 April 2012, the employee might be able to claim unfair dismissal if they have worked for you for more than one year. If their employment commenced after 6 April 2012, they can't claim unfair dismissal unless they have worked for you for more than two years. However, you must be mindful of other claims for which there’s no minimum period of service requirement, for example, discrimination, whistle-blowing or dismissal for asserting or trying to assert a statutory right.

JACUSTOMER-exh9lcub- :

It seems she is exerting a statutory right for a breakdown of her errors and refering to her 2 weeks sign off?

Ben Jones : There will only be an issue if the dismissal is linked to her depression or time off for depression. If you have examples of errors that are not linked to her condition you can use these to justify the dismissal and show it had nothing to do with her health
JACUSTOMER-exh9lcub- :

I get that but she states in her email that we were irresponsible for giving her duties that invloved large amounts of money so soon after returning to work and that we did not explain the legalities behind dealing with the money which is ridiculous?

Ben Jones : Yes I agree it is a weak excuse. To be honest if she wanted to take this further she can only claim discrimination and now there are fees involved in making such claims so to take it to a tribunal and pay over £1k to even get a hearing. I is likely to put her off especially as its a rather weak claim
JACUSTOMER-exh9lcub- :

Could she not get legal assitance financially?

Ben Jones : No this is not available for tribunal claims
Ben Jones : Perhaps from legal insurance like home insurance but they will not help her unless she has a reasonay strong claim
Ben Jones : Reasonably
JACUSTOMER-exh9lcub- :

Does it have more clout that she hasnt been here a year yet? Dont I need to follow a disiplinary procedure now though? I was trying the informal route to get a result but it seems to have back fired a little?

Ben Jones : No you do not, as you will only be pulled up on this I she claims unfair dismissal and claims it was procedurally incorrect but obviously she cannot do that
JACUSTOMER-exh9lcub- :

Why is it not procedurally incorrect though? I havent given her a chance to improve?

JACUSTOMER-exh9lcub- :

Nor documented the meeting as it was informal?

Ben Jones : It is but she can't claim for it
Ben Jones : Without the minimum service for unfair dismissal she cannot make a claim for a procedurally incorrect dismissal
JACUSTOMER-exh9lcub- :

Would it be a good idea for me to go straight to final written on the back of her errors? Do I have to reply to her request for a breakdown of her errors and the financial implications?

Ben Jones : You can just go for dismissal if necessary. Whilst you do not have to give a breakdown it may help with justifying the reasons for her dismissal by trying to show it was not related to her depression
JACUSTOMER-exh9lcub- :

So I call a disiplinary meeting to dismiss her? Invite someone to be with her? Do I not have to investigate, hear her another meeting etc? Or can I just dismiss her on the back of what she has done? She is saying we havent explained it to her but I do disagree?

JACUSTOMER-exh9lcub- :

She is also claiming that I was unsportive, sloppy and inappropriate dealing with another member of staff that she had an issue with. She says that 40% of the reason she got signed off was because of the new staff member but now they are this just insignificant?

Ben Jones : All of these steps are related to a fair dismissal procedure which she cannot claim for if they have not been followed. So you can just giver her a letter to say her employment is terminated. The other issues she has raised are irrelevant in this case
Ben Jones : I am due in a meeting shortly do you need me to clarify anything before I go, I can also get back to you later if needed
Ben Jones :

I hope this has answered your query and would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you

Expert:  Nicola-mod replied 3 years ago.

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