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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49832
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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We have a very Senior Member of staff that we need to

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Hi We have a very Senior Member of staff that we need to dismiss very quickly. They have less than 2 years service and no recourse to claim under the Equality Act.We will either be making the role redundant or wishing to dismiss due to performance.Ideally we will look at redundancy but my questions are as follows.As the individual in question has a 6 month notice period do we need to pay this regardless? I'm assuming if we dont we will get a claim for Wrongful Dismissal?If we just dismiss due to performance but with no formal capability procedure and pay the 6 months notice is there still a risk as they have less than the 2 years service?Any advice on best to handle this would be gratefully received as I am under pressure to dismiss a.s.a.pThanks

Hello is the notice period conditional on anything, like probation etc?

It is indeed correct that if you fail to pay them for the contractual notice period then it would amount to wrongful dismissal so they would be entitled to receive the equivalent pay for that period.

You can dismiss for performance reasons without following a capability procedure, unless their contract stated that you are required to do otherwise. So if there is a contractual right to be taken through a formal capability procedure, you must do so. You do not actually need a reason to dismiss so can use whatever you want, being careful not to rely on discriminatory reasons.

One last point to note, you must have the contractual right to pay them in lieu of notice on termination to be able to do so. If you do not then ending their employment in this way would also be a breach of contract and in some instances can give the, unfair dismissal protection if working the notice period would have taken them over the 2 year threshold.

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

Customer: replied 1 year ago.
Hi he has technically passed probation as probation is 6 months and he has 1.5 years service.If we don't have a clause to pay in lieu of notice can we put on gardening leave for that 6 months?What about redundancy if we make him redundant can we pay in lieu of notice?Our contract says we can dismiss without notice for poor conduct if serious if we can prove this is there still a risk?Thanks

you cannot pay in lieu of notice unless there is a clause or he formally accepts this option. You can put him on garden leave but his service will continue in that period. To dismiss without notice it really needs to be serious stuff not just poor performance you are really looking at gross misconduct issues. I suggest you consider offering him a settlement agreement where you pay him all he is due, plus perhaps a small sweetener but then he would be barred from making any claim against you

Customer: replied 1 year ago.
Hi We are making the role redundant what process do I need to follow?Also I have been told to put him on garden leave for the 6 months paid notice period.Do I make him redundant then put on garden leave or out on garden leave and make redundant, how do I manage thisThanks

Will putting him on 6 months garden leave take him over the 2 year threshold?

Also please remember to rate the two outstanding questions I gave with you, including this one, so I can continue helping, many thanks

Customer: replied 1 year ago.
If we put him on Garden leave for 6 months this would take him over 2 years.Can we make redundant and just pay the 6 months notice pay if there is no PILON in Contract?How do we get round these issues, can you help at all?Can we out on Garden leave for 1 month whilst we consult and then make redundant?
Customer: replied 1 year ago.
Hi i will rate it but If I rate now it will close the question?
Customer: replied 1 year ago.
Sorry i got it wrong he was employed in November 2015 and so would not have 2 years service until Nov 2017. So 6 months Garden leave would still be within this period.If you can help here I would be most grateful ( I will leave a tip lol )

Hi no it will not close the question I can continue helping, thanks. Does he have a garden leave clause?

Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
the contract states we can place on garden leave
Customer: replied 1 year ago.
Is the first stage to put on Garden leave and then deal with the redundancy? or vice versa?

Ok so that is good that he will not go over the 2 years even if he works the full notice period. You can make him redundant now and state that his position is being made redundant. There is no need to follow any specific procedure because that is only required if he can claim unfair dismissal which he can’t. So advise him he is being made redundant and issue him with formal notice of redundancy giving him 6 months notice. Only then can you place him on garden leave for the duration. Give him the option of being paid in lieu of notice too – if he accepts it then it is possible and means you terminate him now rather than keeping him on the books for 6 months