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Hello, my name is ***** ***** it is my pleasure to assist you with your question today. can you tell me has he been given a contract of employment and how long has he been with you please.
yes, he does have a contract of employment and has been with us since Dec 2013.
OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this evening. There is no need to wait and you will receive an email when I have responded. Thank you
Thanks for our patience and sorry for the slight delay, I had problems accessing the site earlier.
If he has been continuously employed at his place of work for less than 2 years then his employment rights will be rather limited. Most importantly, he will not be protected against unfair dismissal. This means that you can dismiss him for more or less any reason, and without following a fair procedure, as long as your decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because he was trying to assert any of his statutory rights (e.g. requesting paternity leave, etc.). In the event that the reason for dismissal fell within these categories, then the dismissal will either be automatically unfair, or there will be a potential discrimination claim. However I cannot see any issues relating to that here.
If the dismissal had nothing to do with any of the above exceptions then he would not be able to challenge it and his only protection would be if he was not paid his contractual notice period, because unless he was dismissed for gross misconduct, he would be entitled to receive his contractual notice period. Therefore, you should ensure that you pay him whatever contractual notice he is entitled to. If he did not have a contractual notice period in place then he would be entitled to a week’s notice by law. You must also pay him any outstanding holidays he has.
I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you
Under the circumstances is this not Gross Misconduct and thereby now warrant payment for notice period?
No this is not gross misconduct - it would have been if he had intentionally hid his past when directly asked about it but there is no proof that he was asked to declare this at the time of recruitment so in these circumstances it is not misconduct
Hope this clarifies the position?
Thanks Ben Yes, it does as we cannot find documentation that he was asked the question. Thanks Karen
you are welcome, at least you can dismiss him safely it's just a
short notice period you need to consider but the priority is to remove him
Based on the wording of our contract we can sack him for Serious misconduct as this states '....it has a serious or substantial effect upon our operation or reputation....' Do we have to go through the disciplinary procedure ie get him back in for formal interview, etc or can we simply write to him and say he is dismissed with immediate effect and will be paid due holiday / notice period? Thanks Karen
does the contract stipulate specific disciplinary procedure you must follow?
if it does then you will have to follow it, if it does not - you can just go ahead with termination and pay him what is due
Could you please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? It is important for us to know either way so we can track customer satisfaction or identify whether I need to help you further? Thanks