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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50206
Experience:  Qualified Solicitor
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I am an employer in a small business of 8 employees.

Customer Question

I am an employer in a small business of 8 employees. On 13 July 2013 I employed a young man called Nick aged 20 to work in my marketing business. We employed him as an assistant with a junior account manager title. My son who was working for me at the time, and also the same age, suggested I might like to interview him when we had a vacancy as he was in a bit of a dead end job that he wasn't enjoying. Nick and Joe have been best friends since they were around 12. Nick has been on a family holiday with us when he was around 14 and we know him well. We interviewed Nick and employed him. For the first 18 months he was mostly enthusiastic and did a good job although attention to detail was never a strong point. But we supported him, and helped him along giving him more attention probably than other employees as I knew him personally. Around March this year he became less and less interested in his work. He made lots of mistakes, his timekeeping wasn't great. His line manager gave him feedback and support. In early June he was making some serious mistakes with potentially damaging impact to client relationships. His line manager, Zoe, and I had a meeting with him. We went through specific examples of errors, and he was very apologetic and said he would try a lot harder. My colleague and his line manager drafted a Formal Warning letter straight after in line with our Disciplinary procedures but I suggested that she didn't send it because I was concerned about the impact this could have on his relationship with my son Joe, his best friend, and my second son Louis who by now was also a very close friend. However, we told him that he should have received a formal warning. His work didn't get much better - in fact in many ways it got worse - and in early September I was told by one of his work mates that he was spending all his time surfing the net in work time, that he'd done some design work for his mates businesses in work time, and that he spent a lot of time on Facebook messenger chatting to his mates. I looked at his internet history on his work computer - which he hadn't deleted - and found over the previous couple of weeks he was spending around 3 - 4 hours each day surfing the web. He was also researching a planned move to work in Australia or America in 2016. I was very upset and quite cross that he was just effectively ripping us off as he bided time. We are a small business that can't afford to carry anyone. I had a converstaion with him, accompanied by Zoe his line manager. My approach was measured and honest and my stance was two-fold - as his employer, and the mother of his best friend. He admitted that he wasn't really that engaged and completely agreed that his behaviour signified this. He also admitted that he was looking for another post abroad. Rather than go down the formal procedure of terminating his contract I asked him if he would prefer to leave as this would make things easier for him and my son. He readily agreed to this and left that day (Friday 4 September. ) We paid him up to the end of the month (30 September). He wasn't owed any holiday. A week later he asked his line manager for a reference which she agreed to. He also met with her and volunteered that he had been stupid and foolish, especially as he had been warned previously in a formal situation (we took him away from the office). However, as he's been unable to get another full time job (it transpires he has been working in a bar since last March which he hadn't told us), he is now feeling aggrieved and has consulted the CAB, who have put him in touch with ACAS. They have spoken to us as part of the Early Conciliation service (we have until 11 December to get this sorted). They advised us that he feels he has a case for Unfair or Constructive Dismissal. He is still in touch with my son Joe but the relationship is, as you can imagine, now somewhat strained. My view (and indeed the ACAS conciliator said this to me) is that a Tribunal may consider that the outcome would have been the same regardless of whether we had followed the proper procedure. We have evidence of everything he has done wrong, including the design work he did for other businesses, screenshots of internet history, and many emails regarding performance issues. ACAS want to know if was are prepared to offer an 'agree to disagree' settlement of loss of earnings from 30 Sept to 11 December. I am loath to do this as I don't believe he deserves any financial compensation from us. However, I don't really want him going to a tribunal as that could take 6 months or more I gather, and I find the whole thing quite stressful. And it's also having a negative impact on my son. Do you think we should offer a settlement now? Thanks, ***** *****
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. firstly did he draft a letter of resignation stating any reasons for leaving you company please.
Expert:  Nicola-mod replied 2 years ago.
(Posted by JustAnswer moderator on behalf of customer)
"I can't reply to your response. But no, he didn't draft a resignation letter."
Expert:  Ben Jones replied 2 years ago.
Hello, thank you for getting back to me, for some reason your initial response did not get through and I have only recently been able to see it. Anyway, I will answer your query now and hope it finds you in good time.
Offering a settlement is the easy way out of this as it will effectively pay him to go away and he would not be able to make any claims against you in the future. So it would be putting an end to this matter once and for all. However, you will be paying him even if you did not necessarily want to.
On the other hand, if you refused to do so, he would be able to consider going to tribunal. However, you must weigh up the chances of that happening – to issue a claim and proceed to tribunal would cost him £1,200. Does he have that money available to him to risk? The procedure so far has been all free which is why he has used ACAS but if he is going to go to tribunal he would have to personally pay the issue and hearing fees, which are quite high. Therefore, you could try and call his bluff – refuse to pay anything, or offer him something lower which you would be happy to pay just to get rid of him. You could make it clear that you would pay half of what he has requested and make it clear it is your last offer and that you would defend any tribunal claim to the end. Another factor is whether he would actually make a claim if it will take all that time to pursue and he may be abroad by then and be unable to continue with it – would he pay over £1k when such a risk exists?
So my gut feeling is that he has tried his luck with the free ACAS assistance, but when it comes to tribunal he may not actually proceed with it due to the costs involved and the fact he may not see it through the end if he is put of the country. On that basis I would not just pay what he has asked for but try to negotiate something lower, or stick to your guns and refuse to pay anything, hoping that he does not proceed with the tribunal claim based on the above reasons. The choice is of course yours but I hope the above has given you sufficient information so you can make that decision.
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
Expert:  Ben Jones replied 2 years ago.
My full response should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to this? If your query has been answered I would be grateful if you could please take a second to leave a positive rating, selecting 3, 4 or 5 starts at the top of the page. Thank you