Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.
What are you ideally hoping for given the circumstances?
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Many thanks for your patience. In the circumstances this person’s actions can amount to misconduct due to unauthorised absence from work. However, if they have more than 2 years continuous service with you, they will be protected against unfair dismissal. So if you are looking to dismiss them and replace them, you must ensure that you act fairly and follow a fair procedure. You cannot just remove them and there are certain steps you must follow as an employer. I would say that an instant dismissal is probably best avoided as it could be deemed unfair, instead you should consider disciplining them to start with and issuing with a formal warning, making it clear that such absences will not be tolerated and that further similar incidents may lead to further disciplinary action and eventually – dismissal. This is what a fair procedure in the circumstances is likely to be expected – if you were to dismiss straight away that could be seen as an unreasonable response by you, especially as you had not given them the chance to resolve these issues.
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Thank you. Misconduct, such as the issues here, 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.