Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. How long has he worked there for?
Hi there, sorry I was offline by the time you reply and phone request had come through. I am in and out of court today so may not be able to speak but if I do have time I will accept your request and call you. In the meantime we will have to continue in writing here. Can you please let me know if you had the right to access his work emails?
Ok that does not automatically give you right to access is emails – even if someone using a works computer they still have a right to privacy so you are only able to access these private emails if you had a very clear and specific policy allowing you to do so. There should have been something in his contract or something that is a separate policy and referred to in his contract which allows you to monitor his email use to be able to access it and then use t against him as evidence. So you need to be very careful about using this as a basis for disciplinary action and if there is no such policy in place, then I advise against it.
When it comes to stress in the workplace, as an employer you have a duty to try and deal with that and to remove or minimise any stressors which may be present and affecting the employee. You are only required to do what is reasonably expected of an employer, rather than what the employee may be asking for, so an objective approach is generally acceptable.
If he has raised grievances but is unable to attend a grievance meeting then you can see if he is happy to have the grievance dealt with in his absence, or via other means such as over the phone or in writing.
If he is going to be absent for the short to medium term then you may have to just allow him that time off if he is signed off sick. If he is going to be absent long-term then you can consider instigating the capability procedure, which could eventually result in a dismissal. This would be a case of you stating that he is no longer capable of performing his job as a result of these long term absences.
This is your basic legal position. I have more detailed advice for you in terms of the law on capability procedures and what is expected of you, 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
Thanks. Reasonable objectiveness is very difficult to put in examples as it depends from case to case and depending on the individual circumstances. In effect it is what would be considered fair overall, viewed from a neutral position.
As to capability, where an employee is unable to perform their job due to ill health or prolonged absences, 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.
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.
An alternative way out is to approach the employee on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employee does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them.
Hah…I will have to pass you on to a criminal law colleague of mine to discuss that and if it is feasible… :)
you are most welcome and thanks for your patience earlier