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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46764
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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For Ben Jones Thanks for your to the previous question,

Resolved Question:

For Ben Jones

Thanks for your to the previous question, Ben. This one's a bit harder: So if we insist that she work days and she refuses and we fire her would that be 'constructive dismissal'? Or would our reasons be valid, i.e. we can't allow her to work nights simply for her own safety? Are we obliged to allow her to make that decision herself?

I appreciate from your previous answer that our duty of care cannot really extend beyond the workplace, but it seems to us that this issue will colour our ability to properly require her to carry out her duties. (e.g. to stay until the end of her shift).
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. How long has she worked there for?
Customer:

About two and a half years

Ben Jones :

Good morning. Constructive dismissal is when the employee is forced to resign, if you dismiss her then it would be potential unfair dismissal. You have to be careful in your decision on whether to dismiss, especially in the circumstances, because she has the required length of service to be protected against unfair dismissal (2 years). Therefore, to fairly dismiss her you need to show that there was both a fair reason for dismissal and also follow a fair procedure. In this particular case, it may be difficult to justify that a dismissal was fair, considering the reasons you are going to use.


 


As discussed in my previous answer, whilst what happened to the employee is highly unfortunate, it is not really something you can prevent easily or take measures to reduce the risks of it occurring. A blanket ban on working late shifts would be unreasonable, especially as there are thousands of people working late or night shifts who go home at unsociable hours and have no issues. What happened to her could easily happen to anyone, at any time and at any place.


 


Your duties as an employer are to help her identify the risks and advise her on what she could do to reduce these, such as getting someone to pick her up, offering her to work days, etc. However, you should not be forcing her to change her shifts or dismissing her if she refuses. That is unlikely to be a fair dismissal. I appreciate you are trying to protect her, but what is expected of you morally will not always be what you may do legally. So the final decision on what shifts to work is hers – you are only expected to identify any risks, see what you can do to help her in the workplace, but apart from that, whether she works nights or days is really down to her.

Customer:

OK Ben that pretty much confirms what i thought. I assume though, if she starts saying 'I can't stay until 10:30, I must leave at 9' that the position would shift and after due written warnings and discussion we could then take steps to dismiss.. would that be correct?

Ben Jones :

Is she contracted to work until 10.30?

Customer:

Yes that's the end of the shift

Ben Jones :

Ok so if that is what she is contracted to work, she would be expected to do so unless there are specific reasons she may not do so. The most relevant ones would be health and safety but as discussed this is really an issue outside of the workplace and if the business needs mean that you simply cannot allow her to finish earlier, then eventually you could remove her but you must follow a fair procedure, and do it in stages, such as warnings, rather than just jumping for dismissal straight away.

Customer:

OK well if we start that process I will no doubt refer to you again. Thanks for the help.

Ben Jones :

No problem, any time

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46764
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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