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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 49826
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We are a domestic cleaning business directly employing

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We are a domestic cleaning business directly employing 26 staff who work closely in teams of two for six to eight hours per day. The truculent, rude, unprofessional and generally "unsociable" behaviour of one them has encouraged her working partner to hand in her notice. The cumulative affect of this person's..... (i)non-communication (she does not engage in conversation all day despite being picked up in the morning, dropped off in the afternoon and working all day together: (ii) poor work ethic (on Friday 24 January she feigned illness in order to have a day off sick when she had been saying all week she was "dreading the workload on Friday"); (iii) laziness, in that she does not properly "pull her weight" and take an equal share of the workload responsibility; and (iv) lack of professionalism (rudeness to customers and refusal to wear full uniform) (v) recent incidence of malicious and threatening text messages to her working partner .....has led the latter to hand in her notice on the grounds that it is intolerable and stressful to carry on working with her any longer. There are two other teams with whom she might be deployed, but they also refuse to work with her on a permanent basis, having head previous casual experience of working with her and taken a similar dislike to her poor all-round attitude, interpersonal skills and shoddy work. Can we make a case for dismissal on the grounds of gross misconduct? Her unacceptable behaviour is damaging the business through the enforced resignation of otherwise happy and effective staff. We are in danger of further good people leaving us if forced to work with her. This might eventually affect the business to such an extent that it becomes unviable and the livelihoods of a number of families affected. She is not pregnant, a member of an ethnic minority, disabled or gay. I look forward to hearing from you. Regards XXXXX XXXXX

Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know how long has she worked there for?
Customer: replied 5 years ago.

Apologies, thought I had put that; 7 Feb 2011, so nearly two years

what is her disciplinary record like to date?
Customer: replied 5 years ago.

She has had several "shots across the bows" from the owner of the business, but we have not tackled things beyond that generally allowing her the benefit of the doubt. This recent "bullying" of her partner with malicious texts and the latter's subsequent resignation has brought things to a head.

I will discuss the general procedure and law that you need to adhere to if you were to consider dismissal. Please pay particular attention to point 4 below.

Misconduct 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:
• Carries out a reasonable investigation;
• Follows a fair disciplinary procedure;
• Has reasonable grounds for believing the employee was guilty; and
• Show that dismissal was a reasonable decision that a reasonable employer would have taken in the circumstances.

I will deal with these requirements in more detail:

1. Investigation - what is a reasonable investigation depends on the case and what resources are available to the employer. However, an employer is only expected to go as far as is reasonably practicable in the circumstances and they would not be expected to conduct a forensically detailed investigation.

2. Disciplinary hearing - if the investigation produces evidence that misconduct may have occurred then the employee should be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the statutory right to be accompanied at the hearing but only by a trade union representative or a colleague. At the disciplinary hearing the employee must be given the opportunity to defend the allegations.

3. Decision - if, as a result of the investigation and the disciplinary hearing, the employer holds a genuine belief that the employee was guilty, they can go ahead and dismiss. When deciding on whether to dismiss, the employer should consider the employee's length of service and disciplinary record. Therefore, longer service and a clean disciplinary record should result in the employer giving more thought into deciding what action to take.

4. Penalty - unless the offence in question amounts to gross misconduct (i.e. something so serious to justify instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning first. If any further misconduct occurs in the future, only then should dismissal be considered. Whilst I understand the seriousness of the situation, it is a fine line as to whether you can dismiss straight away or you would have to issue a final warning for example. Do not that the dismissal can be challenged by the employee and she can make a claim for unfair dismissal in the employment tribunal, even if what you did was fair.

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Customer: replied 5 years ago.

Thanks for your comprehensive response. However, what employer would wish to retain the services of an employee whom others refuse to work with and who precipitates the resignation of their colleagues?. How could a tribunal construe that not to be anything other than misconduct so serious as to justify their dismissal?

well that is for you to decide - the tribunal cannot substitute its own view for that of the employer and it must make a decision based on the circumstances as you saw them at the time. There is a case for dismissal but you must show the remainder of the procedure has been followed too, especially the investigation