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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46780
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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We run a small company of four staff. Recently, our day

Customer Question

We run a small company of four staff. Recently, our day manager, having been asked to do his work in a different way, stormed out of work and has not come back since. This is not the first time he has done this. On the first occasion he claimed he was stressed with financial worries.-we helped him out and got him back into work. This time he has claimed that he is being bullied at work and is suffering from work related stress. We invited him to a return to work interview, but he refused to attend. He has written a grievance letter, so we have tried to set up a grievance meeting. He now does not wish to attend, claiming he is too stressed to face a meeting. He has been absent for six weeks, and been on holiday to help him distress, but is now back. We are patiently trying to deal with a series of demands he is making and then not following through ie: I want a grievance meeting but I don't want to turn up. Meanwhile, whilst attempting to investigate his claims we have found a whole series of emails, some of them quite derogatory, about the workplace and his colleagues , on the works computer, between himself and his fiancée, spanning a period of two years. We would like to call him in on a disciplinary, but feel we would be accused of bullying him further. Meanwhile our very small staff are being put under a huge strain trying to cover his workload as well as our own. Do you have ideas on how we can sort this out before we all suffer from work related stress.
Submitted: 7 months ago.
Category: Employment Law
Expert:  Ben Jones replied 7 months ago.

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?

Customer: replied 7 months ago.
Four and a half years.-his first employment having left university.He has worked his way up to being our day manager.
Customer: replied 7 months ago.
I am sorry, I'm not sure what is happening now. I've awaited your phone response.Do you want me to give you more information?
Customer: replied 7 months ago.
I'm still awaiting a response, as I'm really not sure about what is happening.
Expert:  Ben Jones replied 7 months ago.

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?

Customer: replied 7 months ago.
Basically, my husband gave him an interest free loan of £10,000 without any paper work, when he was stressed last year. he had paid back £2,000, but because we did not have paperwork to confirm this, I looked on our manager's work computer to see if had referred to it. I found dozens of emails which he had sent on the works computer in works time to his girlfriend.He confessed to being bored and was looking for other jobs, on numerous occasions. In May this year, he even started a two hour debate with his girlfriend, planning a holiday for the last week in September, if he was still with us.(he was obviously hoping to have found another job by then.) In June he asked my husband for the time off, but because we already had one member of staff out for two weeks for her wedding, and another member of staff out for two weeks to go on holiday, we had to refuse our manager.Because the computer was his works computer to process orders on, and to do his work related tasks from, he was misusing works property and also wasting works time. Otherwise I would not have read them, or even had access to them.
Expert:  Ben Jones replied 7 months ago.

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

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46780
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 7 months ago.
As he is claiming that my husband frightens-which really is absolutely ridiculous( they have worked quite happily together for four years with no issues, and there is no evidence whatsover of my husband bullying him or intimidating him, just asking him to do his job and correcting him if needed), removing stressors is difficult. They work side by side in a small office.We cannot transfer him to other departments. We think he is making false claims to cover his tracks because he realises he was out of order losing his temper with my husband and then storming out of work-although this is of course unprovable.I am interested in knowing what being reasonably objective would entail, and also information on the capability procedure.Ths is something I know nothing about.Thanks.
Expert:  Ben Jones replied 7 months ago.

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.

Customer: replied 7 months ago.
Hmmm. O.K.That helps.(I think.) At least I know better some of the does and don'ts.I suppose taking a machine gun round to his house and shooting him is not an acceptable option either?-sorry just joking.
Expert:  Ben Jones replied 7 months ago.

Hah…I will have to pass you on to a criminal law colleague of mine to discuss that and if it is feasible… :)

Customer: replied 7 months ago.
Fair enough. Thanks again Ben. I appreciate your help on what must have been a busy Day. Anne.
Expert:  Ben Jones replied 7 months ago.

you are most welcome and thanks for your patience earlier

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