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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44957
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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We run a small café / bar. On Saturday we were made aware that

Customer Question

We run a small café / bar. On Saturday we were made aware that one of our chefs is a convicted paedophile who was convicted of on-line abuse of children in 2010. He was convicted to 30 months in prison and is now on the sex offenders register. He has worked for us for approx. 14 months and gained the job, in part, as he was a friend of our Head Chef (who had no idea of this conviction).
We have a lot of school children visiting the café after school for drinks / a meal and equally employ a number of students under 18 years - sometimes 15 years old (kitchen work).
We met with the individual at the start of his shift on Sunday and asked if this was true and he said it was. He also said that he was not asked whether he had any convictions at interview (he was interviewed by the Manager who no longer works there). He also said that he was turned down for 30-40 jobs following release from prison and his Liaison Officer then told him not to disclose at one interview (pub chef) and he got the job (unsure if was 'asked the question'). He then came to us for his current position and felt it best to not mention again to give him a chance of securing the position. I do not know if the former job had direct access to children / adolescents.
We formally suspended him at the meeting yesterday pending further investigation.
We cannot have an individual with this record working in our business for all of the obvious reasons but need to be certain of our legal position. Can we dismiss him?
Thanks
Karen
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones :

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.

JACUSTOMER-wnfig6fj- :

Hi Ben

JACUSTOMER-wnfig6fj- :

yes, he does have a contract of employment and has been with us since Dec 2013.

Ben Jones :

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

JACUSTOMER-wnfig6fj- :

Thank you

Ben Jones :

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

JACUSTOMER-wnfig6fj- :

Thanks Ben

JACUSTOMER-wnfig6fj- :

Under the circumstances is this not Gross Misconduct and thereby now warrant payment for notice period?

Ben Jones :

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

Ben Jones :

Hope this clarifies the position?

JACUSTOMER-wnfig6fj- :

Thanks Ben Yes, it does as we cannot find documentation that he was asked the question. Thanks Karen

Ben Jones :

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

JACUSTOMER-wnfig6fj- :

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

Ben Jones :

does the contract stipulate specific disciplinary procedure you must follow?

Ben Jones :

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

Ben Jones :

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

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