Hi there, what does you contract or a pensions policy state about withdrawal of pensions contributions if dismissed for gross misconduct?
Hello, not sure if you saw my initial query above - what does you contract or a pensions policy state about withdrawal of pensions contributions if dismissed for gross misconduct?
Hi there, thanks for getting back to me. Capability, where an employee is unable to perform their job due to ill health, is a potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes competence (skill and aptitude), health (any mental/physical quality) and qualifications.
Whether a capability dismissal is fair will depend on the particular circumstances and the procedure that was followed. The employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job and that nothing further could be done to assist them. In the end they need to show that dismissal was a reasonable decision to take. The courts have held that an important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.
When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following elements:• What was the nature of the illness• Was the employee consulted over their position and did the employer try to ascertain the true medical position• What was the likelihood of the employee returning to work or the illness reoccurring in the future• The effect a prolonged absence would have on the business and the workforce• The availability of other suitable employment that the employee could do instead
Dismissal must always be viewed as a last resort by the employer. Only when it is obvious that the employee cannot continue in their job and that there was nothing else available for them to do would dismissal become a fair option.
It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability', in which case they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.
So in summary, if the employer has not taken time to investigate the true medical position, whether suitable employment was available and generally considered the effects the employee's continued absence would have on the business, any dismissal could potentially be unfair. In addition, if they have failed to make reasonable adjustments in the event the employee's condition amounted to a disability, this could also amount to disability discrimination.
Your other queries:• If you are dismissed, whether for gross misconduct or something else, the employer will no longer be obliged to continue making pensions contributions because you will not be employee by them. However it is very rare that they would be entitled to claw back past contributions, usually it is only possible if the contract or pensions scheme allows it and in cases of fraud or similar• Accepting termination under a PILON will not affect your ability or chances of claiming in tribunal, apart from bringing the date of termination forward and with it, the time limit to make a claim.
This is your basic legal position. I have more detailed advice for you in terms of the steps you need to take to progress this further, 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
Thank you. Whilst still employed by them you are able to raise a formal grievance to basically submit a formal complaint about anything you are unhappy with and request that they formally investigate and deal with these issues. You can appeal the outcome if unhappy with it.
If your employment terminates anyway, then you only have two options – to make an unfair dismissal claim and/or a disability discrimination claim. You have 3 months from the date of dismissal to do so.
A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.
If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.
The conciliation procedure and the form to fill in can be found here:
In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.