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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50184
Experience:  Qualified Employment Solicitor
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We are a very small business (borehole drilling operator)

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Hi, we are a very small business (borehole drilling operator) with a very small drilling team consisting of our director (team leader), a part time drilling operative and a full time labourer. Our labourer is consistently causing us issues. We employed him in February of this year. We try to be very fair to him in terms of holidays and time off, he officially gets 20 days paid holiday per annum plus all bank holidays are paid/unworked, and in addition to this, as we are such a small team and he is not experienced enough to work without the director being present, whenever the director (my husband) and I want time off, we want to be fair so he gets paid holiday too. In total so far he has had an additional 17 days paid holiday.
Because of the dangers of drilling activities, we are not insured unless we have at least a two-man team present at any time on site, and he is aware of this.
However, he has received constant verbal warnings over unauthorised breaks, quite often the director will be operating the drilling rig and will turn round as he needs to be handed something, and our employee is nowhere to be seen. He is usually to be found outside the works vehicle taking an unauthorised break (cigarette/making calls/texting etc). We do not have a written break policy but it has been made very clear to him on many occasions that he is putting the drilling operative in danger by disappearing for an unauthorised break. He has also had 7 days off this year, one of those was apparently due to sickness, but on the other occasions he has either not made himself available for work or he has called us the evening before and said he cannot work the following day. As a small business this puts us under financial strain, as mentioned before we are not insured for one person to be on site, so if our part timer is also not available to work at such short notice we have to cancel/reschedule the work. This morning, the drilling team were due to be on a site about three hours away, so with a start time of 8am on site we had arranged to pick him up at 5am (he decided to dispose of his transport several months ago and hasn't yet replaced it, which means the drilling team have to drive to his house to collect him, instead of him making his way to our office). However, the drilling team couldn't get any answer at his door, nor could they get hold of him on his phone despite numerous attempts, thankfully we had our part timer organised for today so the work could go ahead, however it was meant to be a three man team as it is a big job, this now means that without him we will not get the work done in one day and will have to go back in the Christmas holidays to finish off at our cost.
Our director has had enough, and has decided he has to go. Can you confirm we have enough grounds for dismissal, please?
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today. Can you please confirm he is not suffering from disabilities?
Customer: replied 2 years ago.
Hi Ben, I'm Sandra, no he has not informed us of any disabilities.
Customer: replied 2 years ago.
One thing I didn't mention is that he still hasn't called in today to inform us why he wasn't available for work.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience delays.
If he has been continuously employed at his place of work for less than 2 years then his employment rights will be somewhat limited. Most importantly, he will not be protected against unfair dismissal. This means that you can dismiss him for more or less any reason, and without following a fair procedure, as long as your decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because he was trying to assert any of his statutory rights (e.g. requesting paternity leave, etc.). In the event that the reason for dismissal fell within these categories, then the dismissal will either be automatically unfair, or there will be a potential discrimination claim.
If the dismissal had nothing to do with any of the above exceptions then he would not be able to challenge it and his only protection would be if he was not paid his contractual notice period, because unless he was dismissed for gross misconduct, he would be entitled to receive his contractual notice period. If he did not have a written contract in place he would be entitled to the minimum statutory notice period of 1 week. You would either have to allow him to work that notice period and pay him as normal, or pay him in lieu of notice.
I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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Customer: replied 2 years ago.
Very clear and to the point information, which confirms what I suspected - good to have professional confirmation - thank you!
You are welcome, all the best