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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50184
Experience:  Qualified Employment Solicitor
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My husband and I have set up a small catering company, we provide

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My husband and I have set up a small catering company, we provide a catering service through a local golf club, they asked us to retain a lady who had worked there for 6 years for the old chef, who worked alone. We found we needed to reassess her working hours and wrote formally to tell her of this, she refuses to work anything but day times during the week, so we agreed she could work 8-12, with additional hours available evenings and weekends if she would be more flexible. Since then, she has been targeting members complaining we have cut her hours and she doesnt understand why. Today i issued her with a first and final written warning after a confrontation earlier in the week, she has lied to me and is having a serious impact on the business by abusing the friendships she has with my customers, i find this intolerable and have said so. Can i dismiss her? I cannot trust she wont just carry on with this behaviour and need to stop the rot. Thanks for reading. Dawn
Hello, my name is ***** ***** it is my pleasure to assist you with your question today.
You need to be rather careful about dismissing her just like that because she has sufficient service to be protected against unfair dismissal. SO you must ensure there is actually a fair reason for dismissal in the first place and also follow a fair procedure.
Misconduct, such as the allegations here, is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.
In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:
• Conducts a reasonable investigation;
• Follows a fair disciplinary procedure;
• Has reasonable grounds for believing the employee was guilty; and
• Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.
In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:
1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.
3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning. You have already issued a warning so cannot really just jump to dismissal straight away – you need to give her time under the current warning to see if it improve her attitude and only proceed further if there is no improvement or things suddenly take a turn for the worse.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken. Be careful to only dismiss for something very serious in these circumstances, such as if she brings the company in disrepute or is guilty of something else which can amount to gross misconduct.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Thanks for your reply, your advice was clear and reasonable. I do feel as though I have been very patient in this matter, I have no problem with her work at all, she is very capable, but she is also dictating to me through my customers what I can and cannot do and I find that unacceptable. A vocal minority have boycotted the catering service which is shocking. I am happy to say that we have an excellent relationship with the club management and have their full support, my investigations prove to me that my beliefs are correct, the difficulty is allowing this person to continue in a small business where we work closely together. I have told her in no uncertain terms that we are all aware of her activities and that she is being monitored closely, that I am disappointed and cannot trust her. An apology would go a long way.
Acas told me that I could make her redundant, offer a settlement figure, I find that very hard to qualify when she is clearly in the wrong. The hours I have asked her to work are essential to my opening hours so I believe you cannot make a person redunant and then advertise those hours.
I don’t think you can make her redundant in the circumstances – for that to happen you need to show that you require a reduced number of employees doing a particular job, so if her job still exists and you are simply going to replace her, that is not a redundancy. Yu can offer her a settlement just so she walks away quietly at any time an without fear of repercussions, otherwise it is the misconduct dismissal as discussed earlier.