Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long has this person worked there for?
Hi, She joined us on the 2/2/2013 so just under 14 months. Hi have attached a copy of her COE.
Thank you. Whilst this person is not protected against unfair dismissal so cannot challenge the reasons for the dismissal itself, she will still be protected against wrongful dismissal, which is a dismissal in breach of contract. This most commonly occurs if she is dismissed by not being given the required notice period under contract. The only time it is possible to do so is if the employee has been guilty of gross misconduct, which would justify them being dismissed with immediate effect and without any notice. The issue is that there is no specific definition or list of what gross misconduct is and it would always depend on the circumstances, but in general it must be something serious enough to go to the root of the contract and make the person’s continued employment no longer possible.
You have a list of gross misconduct offences in the contract and the most relevant ones that you can try and apply in this situation are:
13. Being concerned or interested in action which is damaging to or in competition with the business
18. Materially breaching a duty to act loyally, in good faith or in the best interests of the company
However, only a court can decide if in this case the actions were ones of gross misconduct so there will always a be a small risk that she may challenge this further but the chances are hopefully low. As such you can try and relay on both clauses above to justify a dismissal for gross misconduct and terminate her contract immediately even if he has already resigned.
OK thanks. The employee also said that they couldn't work 2 weeks ago on Friday as she said she had to look after family but really she had gone for an interview. Does this make a difference?
That in itself could also mean she was in breach of trust and confidence and had basically lied to you, so you can add it as another reason for dismissal