Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Do you want to dismiss her?
Hi Ben, yes unfortunately I do!
Yes I need to please
OK, thank you, ***** ***** this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you
Many thanks for your patience. The key here is whether she had protection in the transfer and if she automatically had the right to transfer to your business. As I do not know the exact circumstances of her employment and if she would have transferred under law, you can use the official list of employees you had at the time to use as a guide as to whether she should have transferred or not. Of course that does not guarantee she should not have been transferred and she may have just been omitted from the list when in fact her rights would have allowed her to transfer.
Whether she should have transferred is not easy to determine and generally you are looking at whether she was employed by the previous business and assigned to the actual business which transfers. For example if it was a pub and she was employed as the cook and you have taken over the lease and continue operating a similar business, the likelihood is that she should have transferred automatically. If the business has changed drastically or she was not employed by the previous business then she may not have transferred. But as mentioned this is not an easy thing to do so I cannot say whether she should have transferred or not.
If she was not due to transfer then it is rather simple to dismiss her, you simply need to give her a week’s notice and pay her for that period and any accrued holidays and that is the end of it. The same applies if she was protected in the transfer and should have transferred but her total length of service, including in the previous employer is less than 2 years.
If she was protected and has a total service of more than 2 years that will be the most difficult scenario as she would be protected against unfair dismissal. It does not mean you cannot dismiss her but you can only do so immediately if she is guilty of gross misconduct. You also need to follow a fair procedure, such as investigate the allegations, invite her to a disciplinary, provide the evidence against her and allow her to defend herself, then also allow her to appeal. You may have to issue her with a formal warning first and only dismiss if her behaviour does not improve but eventually a dismissal can happen if necessary.
So as you can see there are a few options based on her rights under the transfer and each would depend on her total service as mentioned above.
Hope this clarifies your position? If you could please let me know that would be great, thank you
Thank you for this Ben, sorry its taken a while for me to get back to you. Having gone through the accounts, in the 6 weeks we have been here we have spent £1800 more in wages and food than we have taken, so we are going to ask her to do reduced hours just at weekends, give her the choice, I don't think she has any rights under the transfer as she was not on the payroll then, as she was the licensee, and she is not mentioned in any of the paperwork I received. Do you think this would be acceptable, as this is giving her the choice? She can either stay on and just do weekends or leave?
her rights will not depend on whether she was included on the paperwork or not, it is entirely a matter of whether she was an employee, assigned to the business which is transferring and the new business is not significantly different to the old one. You could certainly approach her to discuss the proposed changes and see what she says, then depending on her response you could consider your options and whether to take the risk with dismissing her. You should remember that even if she has rights it would be for her to challenge your actions and to take it to a tribunal and she could be out of by the fees she has to pay to do so
Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks
Thanks for this, we talked to her yesterday and told her the situation, and that we could not continue and offered her a weeks wages etc in lieu of notice, she walked out, she had her wages for the week she did, but said what we were doing was illegal, but when I said I'd taken legal advice she didn't say anything else. She would not sign for her wages, and now is going around trying to take the various sports teams away from our pub and telling people she is going to destroy us and make us lose the pub, so I think we did the right thing anyway in getting rid of her when we did! Thank you for all your help!
you are most welcome, all the best and hopefully she will just make a bit of noise then quickly go away