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How long has she been an employee?
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Many thanks for your patience. The issue here is her length of service. As she has more than 2 years continuous service she is protected against unfair dismissal and constructive dismissal. This means that if you are dismissing her you need to ensure there is a fair reason for doing so and follow a fair procedure. Also if she feels forced to resign she could potentially make a claim for the reasons behind her decision to leave, for example if you had acted unreasonably.
There is actually some case law to cover the position you have faced now. Sometimes an employee may resign in the heat of the moment, for example after an argument with a manager or colleague. It could be an official resignation, or an act that implies resignation, such as clearing their desk, saying they will never return, etc. In such situations they might not really have meant to resign but did so on impulse. Therefore, the employer should not automatically assume that the employee has resigned and should allow a short cooling off period for them to change their mind if necessary.
The leading cases are those of Kwik-Fit Ltd v Lineham and Ali v Birmingham City Council. It was decided that an appropriate period for the employee to change his mind was "likely to be a day or two". That is on the assumption that the employee had not already been given the opportunity to reflect on their apparent resignation and retract it.
Therefore, in circumstances where an apparent resignation has occurred in the heat of the moment, the employer would be expected to give the employee a couple of days before treating their actions as a formal resignation. That time should be used by the employer to contact the employee in order to clarify their position. Failure to do so and take their resignation at face value could be treated as a dismissal instead, which could easily be challenged as being unfair in the employment tribunal.
It appears here that she has made it clear she is returning and that she has not resigned. Therefore, you should not treat this as a resignation. If you want her out of the business then you would need to consider disciplinary action. As mentioned you need to be mindful she is protected against unfair dismissal so you need to tread carefully. I suggest disciplining her now for the refusal to do the work and issue her with a formal written warning to be kept on her file for 12 months. Monitor her in the meantime and if further unwarranted issues arise, you can discipline her again and assuming it is within that 12 month warning period, you could use a further warning to be added on to the existing one and potentially dismiss her. Just do not jump at the option of instant dismissal now as that may backfire.
This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow to fairly discipline someone, 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. Misconduct is a common reason for taking disciplinary action against an employee. It could be due either to a single serious act of misconduct or a series of less serious acts over a period of time.
In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:
· Conducts a reasonable investigation;
· Follows a fair disciplinary procedure; and
· Shows they had reasonable grounds to believe the employee was guilty.
In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:
1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.
3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and formally sanction them. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's disciplinary record. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.