Hello is the notice period conditional on anything, like probation etc?
It is indeed correct that if you fail to pay them for the contractual notice period then it would amount to wrongful dismissal so they would be entitled to receive the equivalent pay for that period.
You can dismiss for performance reasons without following a capability procedure, unless their contract stated that you are required to do otherwise. So if there is a contractual right to be taken through a formal capability procedure, you must do so. You do not actually need a reason to dismiss so can use whatever you want, being careful not to rely on discriminatory reasons.
One last point to note, you must have the contractual right to pay them in lieu of notice on termination to be able to do so. If you do not then ending their employment in this way would also be a breach of contract and in some instances can give the, unfair dismissal protection if working the notice period would have taken them over the 2 year threshold.
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you cannot pay in lieu of notice unless there is a clause or he formally accepts this option. You can put him on garden leave but his service will continue in that period. To dismiss without notice it really needs to be serious stuff not just poor performance you are really looking at gross misconduct issues. I suggest you consider offering him a settlement agreement where you pay him all he is due, plus perhaps a small sweetener but then he would be barred from making any claim against you
Will putting him on 6 months garden leave take him over the 2 year threshold?
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Hi no it will not close the question I can continue helping, thanks. Does he have a garden leave clause?
Ok so that is good that he will not go over the 2 years even if he works the full notice period. You can make him redundant now and state that his position is being made redundant. There is no need to follow any specific procedure because that is only required if he can claim unfair dismissal which he can’t. So advise him he is being made redundant and issue him with formal notice of redundancy giving him 6 months notice. Only then can you place him on garden leave for the duration. Give him the option of being paid in lieu of notice too – if he accepts it then it is possible and means you terminate him now rather than keeping him on the books for 6 months