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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45392
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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i am an employee, and have a part therapist working for me,

Resolved Question:

i am an employee, and have a part therapist working for me, who is also self employed from home also. she has no contract with myself, it has come to my attention that she is poaching salon customers for her home work and i now need to let her go, can i sack her with no repercussions?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

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

Ben Jones :

How long has she worked there for?

Customer:

thank you, XXXXX XXXXX years

Ben Jones :

so she is not an employee of yours, she works on a self employed basis

Customer:

she is on my books, and works part time in the salon, she is also self employed from her home

Ben Jones :

ok but when it comes to her employment with you, is she treated as an employee or self employed (ignore what she does as self employed elsewhere)?

Customer:

as an employee, but like i say with no contract, she comes in , treats clients and i pay her 50 percent of her work, and the other half pays for my stck and overheads

Ben Jones :

perhaps you could answer these questions please and then let me know what you think she is:

www.hmrc.gov.uk/employment-status/index.htm#1

Customer:

i have tried but am doing this from my phone and cant open it up,???

Ben Jones :

this may be better

Customer:

lan employee/ worker ?

Ben Jones :

sorry do you mean that these questions make her to be an employee?

Customer:

i cant see any questions, but what im reading im guessing she is an employee

Ben Jones :

ok I will proceed o the assumption she is an employee, so let me get my response ready please

Customer:

got it, an employee

Customer:

thank you

Ben Jones :

Even without a contract this person would have certain rights, most importantly protection against unfair dismissal. It means that s an employer you must show there was a fair reason for dismissal and also follow a fair procedure. Misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.


 


In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:



  • Conducts a reasonable investigation;

  • Follows a fair disciplinary procedure;

  • Has reasonable grounds for believing the employee was guilty; and

  • Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.


 


In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:


 


1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.


 


2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.


 


3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning. In your case it would depend on how her actions had affected the business, for example did your business lose out as she took the clients you would have normally had, and if that was the case it could be gross misconduct.


 


You need to then confirm your decision in writing and allow her to appeal if necessary.

Customer:

yes she has admitted in taking at least one very good client from the salon so yes takings were lost, i had only verbally told her not to do so, so i still dont jnow whether i can sack her, or do i tell her that she is not needed as salon is qiuet and i can do her shifts until she looks elsewhere, the problem i have is i fear if i let her back in this week she can take contacts and poach further more ?

Ben Jones :

if you say you do not need her then you would be making her redundant and would have to pay her redundancy. Legally she is not prevented from poaching once she leaves unless she has a specific contractual restriction, which she does not so that may be difficult to prevent, but at least it highlights something you need to think of when employing others in the future

Customer:

ok so i cant reduce her hours, so am i right in saying i can sack her on gross mis conduct? do i have to invite her in or can it be a telephone converation? i understand she can poach after she has left

Customer:

she has also told me she wants to reduce her hours to concentrate on her home work, which i havent but will tell her that she needs to do the hours i require, so i know her heart isnt in it anymore

Ben Jones :

you must follow a fair disciplinary and dismissal procedure as explained above, you cannot o it over the phone, it is imperative that you conduct it as discussed, including investigation, disciplinary hearing, appeal if she takes it that far and so on

Customer:

ok, so where do i stand with her wanting to reduce her hours that i do not agree with ?

Ben Jones :

if you do not want to allow it you d not have to, this is only done by mutual agreement

Customer:

ok thank you for your help

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: 45392
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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