Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Is she employed as an employee or self employed worker?
In all honesty there is no easy way to go about this. To claim redundancy you must show there is a reduced need for employees to carry out this particular work. It could apply if for example you decide to take on the duties yourself or transfer them to a family member or even someone who is a non-employee, such as a self employed worker or agency worker. However you would have to pay her redundancy pay and a notice period.
What you could try and do is indeed rely on the baby situation where you make it clear that whilst you have nothing against her having a baby, she cannot be expected to bring it to your hose and be paid for the time she is not looking after the children but just her baby. If she was able to carry out her normal tasks with it in tow that would have been no issue but if it is now beginning to affect her work productivity and ability to do hr usual tasks then you can argue that you should not have to allow her to bring it when working for you. In these circumstances you could try and rely on terminating her current contract for ‘some other substantial reason’ which is a potentially fair reason for dismissal. You can then offer her a new contract which b she is free to accept or reject.
If you offer her a new contract for 2 days and she accepts it then any future redundancy calculation will be based on this – her previous terms become irrelevant. If she refuses to accept it then you could go down the dismissal above. You would need to show that there is now a change of working requirements and that her current circumstances no longer make it possible for her to perform these.
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Hi there, to go down the redundancy route you must show that there is a reduced requirement for an employee to do work of a particular kind. One potential difficulty here is if her job has continuously evolved over time, then there may have been an implied change in her terms to accommodate this as your kids grew older, so he can argue that she is no longer employed on the original terms anyway. Saying that you can argue that the current job, taking into account the existing tasks and hours is no longer required so you are making her redundant from it. You can then make her redundant, pay her what she is due and if she wants to stay in the new job then she can do so, but she would have had her continuous service terminated for future redundancy payments.
So the options you should consider are:
· Offer her a change of contract which she has the chance to accept (be it a reduction in days or pay or inclusion of the baby)
· Make her redundant from the current position
Option 1 means that she will be accepting a variation to her contract but it can also be a new contract issued – in either case she keeps her continuity of service if she is made redundant in the future.
Option 2 means she will get redundancy now and it will amount to a break in continuity of service. You can offer her a new contract still and if she accepts it she can continue working for you but it will be treated as a new contract with a new start date.
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Hi Nick, whilst you may have absolute discretion in this regard you still need to apply this fairly and reasonably so if she is actually able to still fulfil the majority of her duties even with the baby, then you cannot just say you have the discretion to choose she is not and apply it in that way. However, if it is clear that she cannot fulfil her contractual requirements then it may become a capability issue rather than a disciplinary one. So you are going to be arguing that she is no longer capable of doing this, rather than she is not willing to do it – that is the difference between capability and misconduct. So really you are looking at capability proceedings rather than disciplinary ones.
So you could try and go down the capability route where you warn her that she is no longer capable of performing her job which could eventually result in dismissal. He issue is that you cannot just dismiss – you need to give her warnings over time and allow her to improve if possible. You could however use this as a negotiating tool to get her to agree on a new contract which would remove the need for any performance monitoring.
Yes you can insist on that – and if she cannot perform her job otherwise then you can use the capability procedure. She can apply for flexible working but you can reject that on specific grounds. You should do it sooner rather than later though because the longer she is allowed to bring the baby, the more she could try and claim that there has been an implied acceptance by you that you were agreeable to this.
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