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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48170
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I recently terminated an employee who works 1 day a week

Customer Question

I recently terminated an employee who works 1 day a week only ...without following the " corect"proceedure" ...she is threatening to take me to a tribunal for unfair dismissal..
Can she do this as I have never drawn up a contract with her .. she has been with me for 3 years .
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 1 year ago.

What exactly did the employee do in order to be terminated?

Customer: replied 1 year ago.
I recently terminated an employee who works for just 1 day per week ..as I didn't follow the correct procedure she is threatening to take me to a tribunal...she has worked for me for 3 years but I have never issued a contract for her ....can she still take me to tribunal without a contract ..does she have any rights? I terminated her employment due to excessive demands for time off on top of her annual holidays and for never being available as agreed ..to cover when needed ..it sickness/ holidays .Please can you advise if she can take me to tribunal..and win .. without a contract .thank you
Customer: replied 1 year ago.
As above message
Expert:  Ben Jones replied 1 year ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. If an employee has over 2 years’ continuous service then they are protected against unfair dismissal. This means that to fairly and legally dismiss them, the employer has to show there was a potentially fair reason for dismissal and also follow a fair dismissal procedure. Failure to satisfy either could make the dismissal unfair, even if in reality there was a justifiable reason for dismissing them. So the dismissal could be for a perfectly valid reason but be procedurally unfair as no fair procedure was followed and overall it would make the dismissal unfair.

So I am afraid that it is indeed possible for her to claim unfair dismissal if you did not follow the correct dismissal procedure. However, it is not all bad news. There is a principle known as Polkey deduction, which could allow you to reduce any compensation payable by as much as 100%, depending on the likely outcome of a disciplinary had you followed the correct procedure. Only a tribunal can decide that though so it is up to you whether you wish to fight this or try to pay her off just to put an end to any potential claim.

This is your basic legal position. I have more detailed advice for you in terms of the law on Polkey deductions and how it can apply here, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi Ben
Thank you for your informative reply .
I would like further details on the Polkey
Deduction.
Also please can you advise me if the fact there are no contracts in place that this would go against me?
Thank you
Sonia
Expert:  Ben Jones replied 1 year ago.

Thank you. The lack of contracts does not change your legal position in terms of dismissal, but it can allow the employee to make an additional claim for your failure to issue them with a contract, which you must do within 2 months of the start of someone’s employment. If they can claim for unfair dismissal, they can also add a claim for this which can add an additional 2 to 4 weeks’ pay for this failure.

As to Polkey, this is an argument you can raise should this get to trial, where you are saying that whilst the dismissal was procedurally unfair because you did not follow the required procedure, had you followed it as required, the outcome would have been the same. In other words, the failure to follow the correct procedure did not affect the overall outcome and based on the circumstances and facts, the same decision to dismiss would have been arrived at. In that case the tribunal could reduce part of the compensation by whatever percentage they believe is appropriate to account for that.

Customer: replied 1 year ago.
Thank you Ben...this is very helpful...do i need a solicitor to represent me or can I do it myself?
Expert:  Ben Jones replied 1 year ago.

You can do it yourself if you are up for it

Customer: replied 1 year ago.
But because I don't know how to use the legal jargon correctly would I not be listened to/ taken seriously?
If I tried again to talk to her , apologizero and discuss my issues ..and agree to her returning to work ...but then she turns my offer down can she still proceed with a tribunal ?
Customer: replied 1 year ago.
Apologize..not zero!
Expert:  Ben Jones replied 1 year ago.

Many people represent themselves. The tribunal knows you are not legally qualified so they would not expect you to use any legal jargon - they will help you along. She cannot be forced to return to work if you offer her job back but you can raise this later by pointing out she had an opportunity to minimise her losses but turned it down so again it should reduce her compensation

Customer: replied 1 year ago.
Thank you ..you have been very helpful..is there a set amount of absence which is classed as unreasonable or is it based on the individual business needs ?
Expert:  Ben Jones replied 1 year ago.

Nothing specific unfortunately, it depends on the reasons for absence, business needs, what others are taking, etc.

Customer: replied 1 year ago.
OK..thank you ...i feel a little more re assured now ...I will contact you if I require any further advice.
Expert:  Ben Jones replied 1 year ago.

No problem, all the best

Customer: replied 1 year ago.
Hi...I have another question ..as regards ***** ***** holidays allowed ....is that really broken down as 4 holidays plus 1.6 bank holidays?
As this girl only works a Saturday this is usually not ever a bank holiday unless maybe at a Christmas time....which I don't think in the last 3 years it has been on a Saturday
So should the girl still be allowed 5.6 days holiday ?
Thanks
Sonia
Expert:  Ben Jones replied 1 year ago.

Hi, I am sorry as this is a new matter (i.e. not related to the original question on the dismissal fairness) I have to ask you to post it as a new query for my attention please and then I can deal with it. Many thanks

Customer: replied 1 year ago.
OK..no problem
Expert:  Ben Jones replied 1 year ago.

Thank you very much