Employment Law and HR Frequently Asked Questions
Can I instantly dismiss an employee who has committed gross misconduct?
If an employee has committed gross misconduct, then broadly speaking this gives you the right to dismiss them without notice (summary dismissal). However, enough investigation should be carried out to establish that the employee’s conduct did in fact amount to gross misconduct and consideration should be given as to whether dismissal is the appropriate sanction.
This is especially important for employees who have been working for you for two years or more, because if you dismiss them without following a fair disciplinary process then they will be able to successfully bring an unfair dismissal claim against you.
Employees with under two years’ service with you do not have the right to bring an ordinary unfair dismissal claim, however, may have a notice pay claim if there is insufficient evidence to establish that their conduct warranted summary dismissal.
Can I make an under-performing employee redundant?
Although “redundancy” can seem like an attractive option for an employee who is underperforming or otherwise failing to meet your expectations, it is still a dismissal in the eyes of the law and should not be seen as an easy and low risk solution. Redundancy should only be used where there is a genuine redundancy situation; for example, if the role is no longer required in the business.
If an employee has under two years’ service with you, it should be straightforward to dismiss them for poor performance provided that their poor performance is not linked to a disability and their dismissal does not otherwise give them the right to bring a claim. If the genuine reason that you wish to dismiss them is because they are lazy/making mistakes/not hitting targets, then you should dismiss them for this reason, rather than saying that you are making them redundant.
For employees with over two years’ service, it is even more important that the reason given for their dismissal is genuine. If they are struggling with their role, they should be given appropriate training and support and set clear targets for improvement through a capability process. They should not be dismissed without having had the opportunity to improve their performance and having received a series of warnings about the potential consequences if they fail to do so.
For any employee, it is important to be mindful that there can be a whole host of reasons for poor performance. If an employee is not hitting their targets because they are spending the day chatting or using their phone, then this is a conduct issue and should be dealt with as such. If their standard of work is poor because they do not understand what they need to do or have the necessary skills to do it, then this is a capability issue. If an employee has a learning disability or other health issue which is affecting their ability to perform in their role, then this must be taken into consideration and appropriate adjustments made.
Can I dismiss someone for having lots of sickness absence and/or time off due to childcare issues?
This will depend on several factors, including the employee’s length of service, the reasons for the absences, and the way in which they report them.
If an employee has under two years’ service with you and is having lots of ad-hoc, unrelated, sickness absence then it will be relatively low-risk to dismiss them because of their poor attendance.
If an employee has two or more years’ service, then you should not dismiss them without having followed a fair procedure, which would involve warning them that their sickness absence levels are not sustainable and giving them opportunities to improve their attendance.
Regardless of the employee’s length of service, if their high levels of sickness absence are related to a condition which may amount to a disability then you will be required to adjust your usual procedure. This may include adjusting the trigger points for when action is taken under your absence management process and seeking medical advice as to the nature and effects of the employee’s condition.
Employees should never be dismissed for taking time off due to pregnancy related sickness.
Employees have a statutory right to take unpaid time off work to deal with an unexpected situation involving a child or other dependant. This may include aiding if the dependant falls ill and dealing with disruption in their care arrangements. Provided that the employee notifies you as soon as reasonably practicable of the reason for their absence and the expected length of absence, they are protected against dismissal (and other detrimental treatment) because they have taken the time off. You can, however, put in place a robust monitoring system and seek evidence relating to the reason for the absence where appropriate.
How much notice do I need to give an employee if I want to dismiss them?
The employee needs to be given the longer of their contractual notice period and the statutory notice period.
The statutory notice periods are as follows:
1. Dismissal within the first month of employment – nil.
2. Dismissal between one month and two years of employment – one week.
3. Dismissal from two years of employment onwards – one week for each complete year of employment, up to a maximum of twelve weeks.
Where there is no written contract of employment, or no term dealing with notice of termination in the contract, there is an implied term to give “reasonable” notice. For senior employees, “reasonable” notice may be deemed to be longer than the statutory notice period.
Different rules may apply to the coming to an end of a fixed term contract.
Should my part time employees be given bank holidays off work?
In the eyes of the law, bank holidays are no different from any other holiday – they are simply dating on which many employers require their employees to take holiday.
The usual way to deal with bank holidays for a part time employee is to pro rata their entire entitlement for the year. If you wish the employee to take bank holidays off work, any bank holidays which fall on the employee’s normal working days are deducted and paid as bank holidays. Any bank holidays which fall outside the employee’s normal working days are simply non-working days.
However, if an employee’s contract of employment (or custom and practice) provides for bank holidays to be treated in a different way, then this is the way they should be treated.
What should I do if my employee does not show up for work?
You should attempt to contact the employee by telephone to find out the reason why they have not attended work and when they expect to be in. You can also ask why they have not contacted you to let you know of their lateness/absence.
Your next steps will depend on whether you have been able to speak to the employee, and (if so) the explanation they have given.
For example, if the employee tells you that they are unwell, you can pass on your best wishes for a speedy recovery and remind them of the correct absence reporting procedure. If they are struggling to get to work on time for a reason, you can investigate this when they arrive at work. If they provide an unacceptable reason (for example, they decided to take a(n unauthorised) TOIL day) then you can give them a clear instruction that their absence is not authorised and they are required to report for work.
If you have been unable to speak to the employee, you should send a letter which explains that their current absence is unauthorised and asks them to get in touch immediately.
Depending on the circumstances, you may subsequently take disciplinary action for unauthorised absence and/or failing to follow the correct absence reporting procedure. You should therefore make a note of any attempts to contact the employee and any conversations you have with them.
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