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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9340
Experience:  I have been practising for 30 years.
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We are a small insurance broker business based in the UK and

Resolved Question:

We are a small insurance broker business based in the UK and on 6th June 2016, we took on our first employee - a part time administrator. Within the employment offer letter - which is signed by employer and employee, we set out a notice period of 1 week for continuous employment between one monthand 3 months.Due to work performance, we now wish to terminate the employment in the probationary period - just 7 weeks after the commencement of employment.What is the formal process we need to adopt?Must we write and invite the employee to a meeting and allow them to bring a third party - or are we legally able to terminate upon the provision of evidence of poor performance?
Submitted: 12 months ago.
Category: Law
Expert:  F E Smith replied 12 months ago.

Employees taken on after 6 April 2012, need 24 months service to bring a claim for unfair dismissal. Prior to that, it was 12 months.

Assuming that there is nothing mentioned in any contract between you and the employee that you need to follow a certain procedure, the short answer is that you can simply dismiss them giving them the notice in the contract there in the absence of a contract, the statutory notice period for some with less than two years service of 1 week.

You will be liable to give the holiday pay and payment up to the date of termination. You may want to pay them in lieu of notice make greater payment to assist them getting over the shock but there is no obligation to do so.

However, whilst you are able to do that, it is actually better to follow a procedure in line with the ACAS code of practice.

It would avoid complaints or allegations that you are unfair which may affect business if it’s important that you maintain a good reputation locally and it would keep other employees in the future on your side. It’s a procedure that you may want to lay down in your contract of employment. It minimises the chance of any tribunal claim for discrimination anything else.

The best practice is to invite them to a formal meeting and advise them that they can have a union representative colleague with them. If you want, you could actually say that they would be allowed to have a family member or friend from outside work but that choice is yours. The meeting is to “discuss the matter”. You need to give the impression that this is a discussion for you to think about things.

You need to give them the right to respond and even though the end result is going to be that you will probably dismiss them, at least you are seen to have been fair.

It’s as well therefore to have a two meeting process although the meetings can be on the same day, for example, half an hour apart.

If you haven’t already done so, you should have advised the employee throughout the probationary period where things were going wrong and offered training support. It’s just another way of showing how reasonable you are.

Whether you adopt this of course is entirely up to you because you can, if you wished, simply get rid of the employee by giving the notice payment in lieu plus holiday pay of course.

Looking at it from the employees point of view, morally it’s better if you soften the blow a little. You don’t have any duty to do so however.

The situation is completely different once the employer has worked for you for 2 years.

Can I clarify anything for you?

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Customer: replied 12 months ago.
Thank you for your response.If we write and invite the employee to a meeting and clearly state that we may terminate employment, would it be wrong to say;"If you agree with our concerns and wish to terminate your employment - we will be happy to pay two weeks salary without deduction for holiday taken in lieu of entitlement and you would not be expected to attend work. You statutory employment rights would not be affected by this offer"This would be softening the blow but we do not wish it to be construed as a bribe or influence
Expert:  F E Smith replied 12 months ago.

I think you’re better just inviting them to a meeting to discuss performance and then do it face-to-face. Offering ex gratia payment isnt a bribe.

I have known employers in circumstances like this actually go to the trouble of drafting a compromise agreement and paying for the employee to have legal advice on the effect of the compromise agreement in respect of paying them off, even though there was actually very little chance that they would be taken to tribunal.

It is simply belt and braces.

Can I clarify anything else for you?

Please rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.


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