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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46195
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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We welcomed back an employee on maternity leave at the beginning

Resolved Question:

We welcomed back an employee on maternity leave at the beginning of October 2013 but realised that over the last 4 months the work she used to do has reduced and that because of the distance between work and home we cannot offer her a 2 hour per day work. We have decided to add more work to the managers role as well as the accountant.
We called her in on Friday and gave her notice to terminate her employment.
giving her the statutory pay in lieu of notice and any accrued holiday. We have asked her not to work her notice period so that she can look for another job.
In October 2010 when we took her on we just gave her a letter of engagement but no formal contract of employment. We paid her maternity pay during her maternity leave and paid her for accrued holidays during her maternity in December 2013.
Have we missed out anything in terms of paperwork which would come back to bite us?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Is there no other work she can do?

Ben Jones :

Just finishing off a meeting so will respond in about 10, thanks

Customer:

I did not realise that I would be tied to a fixed payment per month. I just thought that is the cost of the one off question on law

Ben Jones :

I do not deal with subscriptions but you can choose an option just to pay a one off fee, you do not have to subscribe

Customer:

that's great

Customer:

every employee has his/her own area of work in the admin section

Customer:

Also that the trade has slowed down

Customer:

Oh so what happens now?

Ben Jones :

In what sense please?

Customer:

who is going to help me with my question

Ben Jones :

I am still here

Ben Jones :

I am dealing with your query I haven't gone anywhere...

Customer:

OK

Ben Jones :

So her employment has now formally terminated and she is no longer employed by you?

Customer:

That is what we informed her on Friday. We just need to do a letter spelling out the payments etc.

Customer:

Can she ask under what criteria did we chose to let her go ?

Ben Jones :

ok let me get my response ready please

Ben Jones :

I wish you had contacted us before you proceeded with the dismissal because unfortunately you have not gone about this the right way and there is a strong potential of this being an unfair dismissal.


 


If an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed. Whilst you may be able to show a fair reason existed there has certainly been no fair procedure.


 


If the workload has reduced and her job has more or less disappeared then this is a potential redundancy and you would have had to follow a proper redundancy procedure. This would have required you to place the employee at risk of redundancy, start a consultation period with her, discuss the redundancy situation and what can be done to avoid it, offer her any suitable alternative employment if it exists, discuss the selection methods or why she was selected, hold a dismissal meeting and give her the chance to appeal. You appear ti have gone straight to dismissal and this will almost certainly make the dismissal procedurally unfair.


 


Now that you have terminated her employment the damage has been done – you could give her the chance to appeal she can appeal, then you can offer her the old job back, and then you can go through the proper procedure – that is one potential way of salvaging this. But if she decides she does not want to appeal then she can proceed to making a claim for unfair dismissal if she wanted to. Only she knows if that will happen but it is a possibility.


 


So at this stage there is a lot that could come back and bite you, but as mentioned it is possible to try and reduce any risks. Also it is worth mentioning that she would have also been entitled to a redundancy payment so that would have had to be added to her payout.

Customer:

OK I think we will add the redundancy to her payout.

Ben Jones :

that may help but still does not deal with the failure to follow procedure

Ben Jones :

She can still claim even if you pay her redundancy

Customer:

At this stage I will have to find out from the person if the status can be retrieved to follow your procedure

Ben Jones :

well you don't want to contact the employee and tell her you did not follow procedure but you invite her to return so that you can do so. But you can give her the chance to appeal and if she does so - you hold the appeal and see what she has to say and if you believe you wish to reinstate her then you may do so

Customer:

Yes that is what I meant in not so many words.

Ben Jones :

ah ok i see

Customer:

Anyway thank you for your help. I think in future we shall try not to be too smart and believe that we know it all!!!!!!!!!

Ben Jones :

It is easy to get caught out as there are many pitfalls in employment law and it is constantly changing, but making a few enquiries initially can save you a lot of headaches in the future....good old hindsight

Customer:

Thank you again. Will certainly bear your advice in mind. Good Evening

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



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Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46195
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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