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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45319
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, I am the owner of a small shop currently employing 1 full

Resolved Question:

Hi, I am the owner of a small shop currently employing 1 full time manager and 2 part time employees. One employee works 2 days per week and I have been having increasing problems with them with regard to their attitude to customers, which has resulted in a number of complaints.
We are also now getting phone calls from customers asking if she is in and then saying they will come in another day when she is not around. In addition, the relationship between this person and me as owner also broken down. (I do not work at the shop at all, just pop in daily)
While I could obviously instigate a disciplinary hearing and progress that way, I really do not wish to follow that through over what could be some time and given the size of the business it is not practical.
The person's written contract of employment allows for them to give one weeks notice to terminate employment and the section for me as employer says "the employer will provide the employee with the minimum termination notice as required by law. The employee and employer agree that this is reasonable and sufficient notice of termination of employment."
This person has worked for me for just over 5 years, so what I would like to know is whether I am legally able to terminate the contract by giving 5 weeks notice without having to go through any disciplinary procedure or giving any particular reason other than those mentioned above. If I can, my intention would be to pay the employee during that notice period, but not require them to attend work. I look forward to hearing from you. Thanks
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

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

Ben Jones :

Have you raised these concerns with her?

Customer:

These concerns were raised with her following a problem between her and my son who is also a part owner of the business and 2 customer complaints about her rudeness in the past few weeks. I have had similar issues with customers/attitude in the past, but have raised those verbally and no formal disciplinary procedure has ever been instigated previously. I have indicated to her that we will need to follow this through via a disciplinary hearing, but I also offered her the option to resign if she felt she didn't want to go down that route or didn't want to continue her employment. If she chose that option, I said I would be happy to pay her 3 weeks money even though she would only have to give me 1 weeks notice. She has not come back to me yet, but as I said in my previous message, I really do not want the aggravation and difficulties which would surround a disciplinary process in this case and would prefer if it is ok as per the contract to give her longer notice to fulfil my legal requirements even if that costs me more money. With my business being so small I cannot take the risk of customers leaving us. I look forward to hearing from you again.

Ben Jones :

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.

According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.

So it is not possible for you to just give this person the required notice period under their contract and dismiss them that way. You still have to show there was a fair reason for the dismissal and also follow a fair procedure. In these circumstances you would be relying on misconduct as the potential reason and would have to go through a formal disciplinary procedure. You also can’t just dismiss her for misconduct unless you can show she was guilty of gross misconduct, something so serious that her employment with you is no longer possible. In the circumstances there is an argument that you may have to issue her with a formal written warning first and allow her to change her ways before dismissal is considered as an option.

You could nevertheless approach her and offer her the option of leaving under some sort of a settlement agreement, where you compensate her for leaving and she agrees not to claim against you in the future. You cannot force her to accept it but can put it on the table as an option for her to consider. If she refuses, then unfortunately you must go through the formal disciplinary process if you were looking at taking formal steps to try and terminate her employment.

Customer:

Thank you for the information which whilst not being the answer I wanted, clarifies the position for me. By offering her the option to resign and still receive 3 weeks pay, I was hoping that would be a settlement she may take and indeed she may still do so. I do understand that the areas I've mentioned to you are misconduct but would probably not be classed as gross misconduct hence me wanting ideally to avoid a protracted time resolving this. One thing I did not mention, is that following my initial discussion with her about these issues, on that afternoon last week she advised at least one of the customers (it is a barbers shop) that she was leaving and gave him her business card for the future. That would appear to me to be something that would be considered gross misconduct under her contract of employment as it involves customers of my business. I have not raised this yet with her as I was advised of this happening by my other part time member of staff who was present then and I did not want to involve them in this issue unless absolutely necessary. I would appreciate your views on this as a possible Gross misconduct matter (i.e attempting to poach my customers while working for me). There is a section in the contract regarding conflict of interest which would seem to cover this type of thing, a breach of which would seem to allow me to terminate without notice). Obviously I would then arrange to approach her about this and indicate it would form part of any disciplinary hearing and the fact that it could be a matter of gross misconduct which the contract allows termination with no notice. (I would not wish to follow that through though unless I had to as I would much prefer to agree some sort of reasonable settlement with her for both our sakes! She is not due back in work until next Tuesday, so I am aiming to get this resolved prior to that. Could you please advise me on this latest information, how you would see it and whether I should just advise her of this information at this stage and then await her response to everything before proceeding further. Thanks

Ben Jones :

you need to be careful with her just accepting to resign and thinking that is the end of the matter. She can still then make a claim for constructive dismissal by arguing she was pushed into leaving and had no other option and this could come back to bite you. A settlement agreement is a formal document where you need to involve solicitors to sign it off and then you pay her a settlement figure and she then cannot make any claims against you - that is the only way you can be certain it is a clean break. The additional information could indeed support a gross misconduct charge but you still have to go through the full disciplinary process before you can consider dismissal

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45319
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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