Employment Lawyers Can Answer Your Employment Law Questions
, my name is ***** ***** it is my pleasure to assist you with your question today. Was she actually dismissed on grounds of misconduct?
I am not sure but she is still allowed to work in her nursery until 2nd February.
If she has been continuously employed at her place of work than 2 years then her employment rights will unfortunately be somewhat limited. Most importantly, she will not be protected against unfair dismissal. This means that her employer can dismiss her or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because she was trying to assert any of her statutory rights (e.g. requesting maternity leave, etc.).
If the dismissal had nothing to do with any of the above exceptions then she would not be able to challenge it and her only protection would be if she was not paid her contractual notice period, because unless she was dismissed misconduct, she would be entitled to receive her contractual notice period. If she did not have a written contract in place she would be entitled to the minimum statutory notice period of 1 week. Her employer would either have to allow her to work that notice period and pay her as normal, or they will have to pay her in lieu of notice.
If she was not paid her notice period when she was due one, that would amount to wrongful dismissal (which is different to unfair dismissal) and she could make a claim in an employment tribunal to recover the pay notice period that she should have been given. There is a 3-month time limit from the date of dismissal to submit the claim.
Whilst she may have a contractual disciplinary procedure, this must only be followed if the reasons are conduct related because that is when a disciplinary would be necessary. It could be that the reasons are not related to her conduct in which case the employer does not have to follow it.
Her manager has failed to carry out any of the disciplinary steps that is stated in her contract. She has only received a performance not but the manager failed to follow the 20 stage nor has she received any written warnings. Surely this is a breech of contract as they have failed to abide by their on terms in the contract.
, these steps only need to be carried out if there is a disciplinary matter or a misconduct reason dismissal. However, misconduct is only one of several possible reasons an employer could dismiss someone. If the reasons dismiss are not conduct related, then the employer does not have to follow their disciplinary procedure. Even if they did follow that process it does not prevent a dismissal in any way - they can still easily dismiss her regardless. All that she would then be entitled to in terms of a breach of contract claim is the extra pay she may have received employer taking the time to go through that process, so a few weeks' pay at most
Does this clarify query please?
, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? I just need to know whether to close the question or not? Thanks