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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I own a restaurant. My Head Chef walked out at noon today

Resolved Question:

I own a restaurant. My Head Chef walked out at noon today in the middle of service on fathers day! He left as he did not wish to make a dessert that we had requested. In addition we were in discussions with him about unauthorised use of the company vehicle during which he burnt out the engine. I need to send him a letter for dismissal due to gross misconduct (walking out in service) and also to advise that the repair costs for the company vehicle will be deducted from any pay due to him. Please advise?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

Does his contract say you can make any such deductions from his pay?

Customer:

Yes it does

Ben Jones :

What specifically does it allow you to deduct for?

Customer:

Does this cover it - the use was unauthorised so....?

Customer:

lause.


If you leave without giving the proper period of notice or leave during your notice period without permission, the Company shall be entitled as a result of your agreement to the terms of this contract to deduct a day’s pay for each day not worked during the notice period, provided always that the Company will not deduct a sum in excess of the actual loss suffered by it as a result of your leaving without notice and any sum so deducted will be in full and final settlement of the Company’s claim for your breach of contract. This deduction may be made from any final payment of salary which the Company may be due to make to you. The amount to be deducted is a genuine attempt by the Company to assess its loss as a result of your leaving without notice. It is not intended to act as a penalty upon termination.


Your employment may be terminated by the Company without notice or payment in lieu of notice if you are guilty of any gross default or misconduct in connection with or affecting the business of the Company, or in the event of any serious or repeated breach or non-observance of any of the stipulations contained in this agreement or if You are convicted of any arrestable criminal offence (other than an offence under the road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed).


 

Ben Jones :

How long was his notice period if he was to resign?

Customer:

1 week.

Ben Jones :

ok thanks let me get my response ready please

Ben Jones :

You are able to dismiss the employee for gross misconduct and as he does not have 2 years’ continuous service with you he would not be able to claim for unfair dismissal. However, if this is the only clause dealing with your ability to deduct anything from his wages, you will unfortunately not be able to charge him for the use of the car by deducting this from his pay.


 


The clause you have does not allow you to make such deductions. It only allows you to deduct any losses incurred as a result of his breach of contract that has resulted from him not working his notice period. This does not include unauthorised use of a vehicle. Employees have rather strong rights when it comes to deductions made from their wages and they are quite well protected in that respect. You can only make deductions if they are very clearly allowed for under their contract of employment or other written agreement, where the employee’s written consent has been obtained. This is not the case here as the wording does not allow you to make the deductions you are wishing to make. If you want to pursue him for the damage done to the vehicle then you must make a separate claim against him in the small claims court and pursue him for negligence.


 


Also, if you are dismissing him for gross misconduct you will not be able to make the deductions either. You can only make deductions if he has walked out without serving his notice period. If you are dismissing him then this cancels the resignation and the ability to claim for the remainder of his notice period. Instead you could write to him and state that his actions of walking out are treated as a resignation and that if he is unavailable to work through his contractual notice period of a week, you reserve the right to deduct up to a day’s pay for every day of his notice period for any losses suffered due to his breach of contract by walking out without giving notice. In effect, the most you can deduct is a week’s pay. You would still have to pay him for any other pay in addition to that and also any accrued holidays up to the day he left.

Customer:

OK thank you. Can you provide wording for the letter I need to send him regarding his resignation from the business.

Ben Jones :

Hello again, you would need to have a opermanent contract with the employer, not be an agency worker who works through an agency


 


 


 


 


 


Dear XX


 


I am writing to you regarding your actions on 15 June 2014, where without any justification you walked out from the restaurant mid-service. Not only is this highly unprofessional but it has also placed our business into disrepute as the Father’s Day service was adversely affected as a result.


 


Since you did not offer an explanation for your behaviour and I have not heard anything from you since, I am treating your actions as a resignation and hereby confirm the termination of your employment as a result of your resignation. If you are willing to work your notice period of 1 week then please contact me within the next day to confirm you are willing to do this. If you are unwilling to do so then you will be acting in breach of contract and as per the terms of your contract I am going to consider making any necessary deductions from any pay due to you in order to cover the losses to the business incurred through your actions. However, please note that if you return to work, I will also have to consider disciplining you on grounds of misconduct due to your actions, something which may lead to your immediate termination.


 


Please respond with your intentions by XX. If I do not hear from you by the close of business on that day, I will assume your resignation stands and will proceed as outlined above. You will still receive payment for any outstanding wages due, following the necessary deductions and any accrued holidays.

Ben Jones :

Oops sorry ignore the first line above

Ben Jones :

The text from Dear XX applies to your case

Ben Jones :

Of course you can tweak it as necessary but this is the basic format you are looking at

Customer:

Thank you for your help on this. Is it easy to claim back from small claims court for the van??

Ben Jones :

Well it depends on what he did and whether you can show he was negligent in his actions and that caused you losses. The issue is that even if you win it does not guarantee payment - he could refuse to pay you and you then have to try and find ways to force him to. This will inevitable rack up the costs until you find a method that works...and none are necessarily guaranteed to. So there are risks

Customer:

Ok thank you

Ben Jones :

you are most welcome

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