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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50157
Experience:  Qualified Employment Solicitor
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We have an employee that has had 2 written warnings in the

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We have an employee that has had 2 written warnings in the past. And although he is not currently doing anything wrong. We employ him as a sales person and he is no longer selling. I beleive he is simply sitting and not even speaking to customers and getting paid for the privalage.  Where do we stand legally with letting him go?

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has he worked there for?
Customer: replied 2 years ago.

Almost 9 years. Because we sell hot tubs we only have need for 1 sales person at our showroom. No other employee works at this site. We send staff from head office and our main showroom to cover if he is on holiday.

When were these warnings issued and are they still 'live'?
Customer: replied 2 years ago.

One almost 2 years ago for not turning up to work on time and going home early, stealing around 6 weeks of time that we paid him for in total. We still feel he is still doing this a little but it's impossible to prove without putting up a camera (he admitted it to us the 1st time). The latest one was last year for also stealing off the company but this time he was buying and selling our products personally and using our site to retail them. Instead of putting them through the company.

If an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.
According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.
The fact he has had warnings in the past would not necessarily allow you to just dismiss him unless they were still live. For example, when you issue a warning you must stipulate how long it would be live for, usually 6 months to a year. That means if during that period he commits a further offence, the live warning could be used when you decide on an appropriate outcome and in some circumstances it could be used in a ‘top up’ procedure where two warnings equal a dismissal, when just one would not have been enough.
If you wanted to dismiss assuming the warnings are no longer live then you really need to show he is guilty of gross misconduct, otherwise it may have to be a case of going through another process of issuing a warning for performance and then if there is no improvement in time only then dismiss. You just have to be careful with jumping to dismissal as he is protected against unfair dismissal.
So, an employee's poor performance is a potentiality fair reason for dismissal under the Employment Rights Act 1996, as it would amount to lack of capability. This should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality" and must relate to the work that they were employed to do.
In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.
Generally, the reasonableness of such dismissals would be measured against the following criteria:
• Did the employer have reasonable belief in the employee's incompetence;
• Was the situation investigated and was the employee given the opportunity to voice their side of the story;
• Was the employee aware of what was required of them in terms of satisfactory performance;
• Were steps taken to minimise the risk of poor performance through training, supervision, etc;
• Was a proper appraisal conducted and was the problem identified in a timely manner;
• Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;
• Did the employer consider offering alternative employment.
The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged.
So proceed carefully and do not automatically consider dismissal as the only option available here, especially as it could be challenged.
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.

Thank you for your detailed response. It's as we thought, but just wanted to know where we stood.


You are welcome. If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you