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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46151
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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A staff member was asked to leave, he did so but has not returned.

Customer Question

A staff member was asked to leave, he did so but has not returned. He then proceeded to accuse the boss of racial abuse. This has been taken to court and will be heard on the 25th. As a company we have just installed a disciplinary and grievance system. He has not returned to work so has an unauthorised absense, caused a confrontation and refused to follow instruction. Now would we be able to bring him back and sack him because in our minds he has terminated his own contract by not returning to work. Where do we stand on this matter. My number is *****
Submitted: 11 months ago.
Category: Law
Expert:  Ben Jones replied 11 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Did this person state he was not returning or was resigning? Also when did all this happen?
Customer: replied 11 months ago.
No he was asked to leave and come back tomorrow to calm the situation down. But because we didn't have a disciplinary system in place we really have to bring him back in because he hasn't been sacked but he has committed gorse misconduct I.e unauthorised absence. It happened about 2 weeks ago.
Expert:  Ben Jones replied 11 months ago.
How long has he worked there for?
Customer: replied 10 months ago.
About 2 years
Expert:  Ben Jones replied 10 months ago.
Do you have the exact start date as that is quite important here?
Customer: replied 10 months ago.
05/05/14 was the start date of employment
Expert:  Ben Jones replied 10 months ago.
Thanks. Thank you. The key here is whether he is still considered employed by you. You cannot take him through the disciplinary procedure if he is no longer your employee. You say you asked him to leave and from what I understand that was not a dismissal but you just wanted to get him out of the workplace to let things settle down. Subsequently he has not returned to work but he has also not indicated that he has resigned or is not going to ever come back. Based on this you can assume that he is still employed by you and subject to the disciplinary procedure which you wish to take him through. The length of service he has with you is relevant in terms of the protection he gets against any dismissal. If he has less than 2 years’ service he is not protected against unfair dismissal so it means you can dismiss him without following a fair procedure and can just issue him with notice of dismissal. If he has more than 2 years then he will be protected against unfair dismissal and you must ensure that you have a fair reason for dismissal and also follow a fair procedure. Failure to follow a fair procedure even if you had a fair reason to dismiss can make the dismissal unfair.This is your basic legal position. I have more detailed advice for you in terms of the procedure you must follow to show that you had followed a fair process, 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 I 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: Law
Satisfied Customers: 46151
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 10 months ago.
Perfect, what I found out today is that my father gave him his p45 but it was a week later. How does this end up going now. A union rep has came in representing him but understand how the union representation works but by my understanding there is a huge possibility this goes to a tribunal. If we do an internal investigation what outcome do we come too? Because I don't want him to be convicted of racial abuse and then us to find him not guilty or vice versa. Thanks very much for your help
Expert:  Ben Jones replied 10 months ago.
Hello, thank you. So can you please clarify when the P45 was given. Also can you please let me know if his contract allows him to be paid in lieu of notice?
Customer: replied 10 months ago.
I don't know the exact day but it was but the incident happened on the 12th of April. So it would have happened pretty swiftly probably 2-3 after it happened. Yeah he was paid his week in hand.
Expert:  Ben Jones replied 10 months ago.
Thank you. It appears that his employment has already been terminated so there is no need to get him back only to put him through the disciplinary procedure and dismiss him again. Just make sure there is evidence that he was given notice, that he was told his employment is being terminated. If that did not happen then it is best to do that now just to cover yourselves.

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