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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I have dismissed an employee without following the proper procedures.

Resolved Question:

I have dismissed an employee without following the proper procedures. However, she had already given notice of her intention to leave & was a week into one month's notice. Now she is claiming Unfair Dismissal. Is she likely to have a strong case in these circumstances?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long did she work there for?

Customer:

3 years.

Ben Jones :

When was the dismissal?

Customer:

About 6 weeks ago.

Ben Jones :

Does she have a new job?

Customer:

Yes.

Ben Jones :

Has she made the claim in the tribunal?

Customer:

No, but she has consulted a Solicitor & is claiming (via the Solicitor) around £6,000 in compensation, plus holiday pay & £1,000 in legal expenses.

Ben Jones :

Has she broken down her claim?

Ben Jones :

as in to provide details of how these figures were calculated?

Customer:

Further to our telephone conversation and your email below, our client would be prepared to enter into a Settlement Agreement to settle her claim for unfair dismissal in the Employment Tribunal in return for the following:


 



  • An ex gratia payment of £6,250;

  • A payment of £1,000 towards our clients legal fees (as our client would not have had to incur these fees had she not been unfairly dismissed);

  • A payment in respect of accrued holiday up to the termination date of 27 March (which I understand has already been paid to our client); and

  • The wording of the announcement included in the Settlement Agreement to be amended so as to rectify the incorrect understanding of staff that she had committed gross misconduct.

Ben Jones :

Even though she has already handed in her notice to leave, if you had dismissed her before the end of the notice period she would still be dismissed and if necessary can claim for unfair dismissal. However, I doubt she would go through the process. She would need to pay around £300 to make the claim then another £700 for the hearing fee and when you consider what she would be claiming for, it would make no sense to proceed. In an unfair dismissal claim she would only be looking at a basic fee which won't be very high and any ongoing losses of earnings. If she has a new job then she does not really have any ongoing losses and the greatest part of her claim won't exist so it would be pointless to spend all that money when you may not even be able to recover much more than that. So whilst technically the dismissal may be procedurally unfair and she can make a claim if she wanted to the costs she can recover would be more along the lines of:

1. Basic Award, which is calculated in the same way as a redundancy payment (https://www.gov.uk/calculate-your-redundancy-pay)
2. Compensatory award - this is the loss of earnings she has incurred so if she has found a comparative job straight after leaving her losses would not be great, so you need to calculate roughly what she has lost as a result of her dismissal as that is all she can recover
3. Remainder of her notice period and holidays for that period

Customer:

Are you able to suggest the next course of action for me, please?

Ben Jones :

you can always reject their claims and ask for a full breakdown of how she has arrived at these costs and also certainly not pay for her legal fees, you are not responsible for these. Have a small offer in mind you are willing to pay her to try and get rid of her and maintain that but in the meantime get the detailed breakdown and consider if she has a valid claim to pursue this amount - she could easily just be trying her luck at this stage

Customer:

Thank you. Am I able to get a transcript of our exchanges, please?

Ben Jones :

You have a few options:
a) If you see a 'share' button and hover over it you can see the option to print.
b) You could copy and paste this conversation into a Word document or equivalent. You can then save and/or print it and refer to it in the future as necessary.
c) This conversation will be stored in your account on this site so you may return to view it or do any of the above at any time

Customer:

Thank you, XXXXX XXXXX been very helpful.

Ben Jones :

you are most welcome, all the best

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