Find the right answers to your HR & Employment Law questions.
01.We have just lost a big contract and need to cut our costs, what can we do?
Firstly, we would ascertain the full impact of the loss of the contract; was it responsible for more than 50% of your turnover? Redundancy may not be the appropriate action, due to the marketplace, cost of losing people and long term plans.
We work closely with our clients to understand what level they need to restructure. Depending on the situation, we may suggest anything from compulsory redundancy through to short-term working, layoff and reduction of financial employment benefits. In deciding the most appropriate action we provide the right guidance and documentation at each appropriate stage.
02.I have had someone working with me on a self-employed basis for a number of years. Does this person have any rights if I need to let them go?
Firstly, a self-employed person does not have the right to claim unfair dismissal so no process or notice is required; but they do have the right not to be discriminated against, so be careful. That said, consider if they are classed as a ‘worker’ under employment law. If so, then they may be entitled to some substantial rights, such as paid holidays for the time they have been working with you and protection against discriminatory treatment. Additionally, you may want to consider your tax risks.
03.I have told an employee, who has worked for me for a number of years, to sort their attitude out on three occasions following complaints from customers. Can I sack them now without any repercussion?
Telling someone to sort their attitude out does not usually constitute a procedurally correct warning and therefore should not be considered as a formal step.
To ensure any action is deemed fair and reasonable we strongly recommend that you commence a recognised disciplinary and dismissal process, such as the ACAS code of practice. At the same time a suitable investigation should be undertaken to support any decisions made in the future. This will identify any reasons why their attitude may be like this, such as neuro diversity – such as ADHD, autism or bipolar disorder. Menopausal symptoms must also be considered as reasons. It could well be expected that the suggested three stage process of disciplinary action should be followed to ensure the dismissal is both fair and reasonable; while also give reasonable adjustments to accommodate any defined disabilities.
04.I have an employee I would like to let go, not for any real reason other than we don’t really get on. They have been with us a number of years. I have heard I can let them go quite easily, is this correct?
It often happens where the employment relationship become worn and both parties, in their own minds, know that they really should part company. In some extreme circumstances dismissal on grounds of Some Other Substantial Reason (SOSR) can be considered, with notice pay, although the threshold test for this to be legal is really high. Otherwise in such cases a protected discussion, known as a settlement negotiation, should take place whereby the intention is to come to an agreement to terminate the employment through a settlement agreement in return for some financial compensation.
A COT3 Agreement is a good way to deal with this, and the financial payment should not be lower than the base level defined by the Courts i.e. the equivalent statutory redundancy level. It is very likely that any offer below this will be rejected, for a number of reasons. Up to £30,000 can still be paid tax and NI free when classified as compensation. Notice, holidays and car allowance all need to be treated for taxes and pension accrual.
05.Unfortunately, we have an employee who has been very ill. He has been with us for a number of years and is well liked here. I can’t see him coming back to work. What should we do?
It may feel morally wrong, but you are acting in the best interests of the business. Equally, the employee is still entitled to be treated fairly, reasonably and without suffering any detriment if they have a disability.
Typically, the first stage would be to get their consent to enable you to get a report from their GP, consultant or an occupational health advisor. On receipt and review of the report it may be necessary to obtain further information or to proceed straight to a medical capability meeting. The intention of the capability meeting is to explore any reasonable adjustments along with the potential to return to work. The outcome should then be confirmed in writing. If after this there is no prospect of returning to work then dismissal is on medical grounds, with notice paid at the normal rate of pay.
Holidays need also be considered as up to 20 days may be due if none have been taken nor paid due to medical incapacity*.
*this matter alone varies case by case.
06.The new employee who started with us two months ago is not working out, do we have to give them any notice?
Yes, other than for reasons of gross misconduct then notice pay will always be due when ending the employment of anyone with more than 30 days continuous service. The statutory level for someone with more than 30 days service, but less than 2 years is one week. This then increases by one further week for each completed year of service; up to a maximum of 12 weeks. If you have a contract of employment in place (which you should from day one of employment) then check the notice. The contract may afford more than the statutory minimum.
Further, the dismissal should be straightforward, but it is always important to consider why the relationship is not ‘working out’. If it appears the new employee is being dismissed for a protected characteristic of the Equality Act, i.e. a discriminatory reason, then our advice and support will be very different. It is important to explore the reasons for letting employees go so early in their employment as claims for discrimination can be made by anyone. The potential costs and award are uncapped.
07.An employee, who has been with us for some years, has failed to attend work in the last two weeks. They have not contacted us, we can’t get hold of them and we have heard they have another job. Can we assume they have resigned?
It is common for employees to ‘fall off the radar’ for often legitimate reasons but until a written resignation, or demonstrate very clear intentions to leave their employment, then the onus is on the employer to resolve the situation.
They should be invited to a disciplinary hearing on the grounds of unauthorised absence or holding alternative employment, where the potential outcome is defined. It is often the case, in these circumstances, that the employee does not to turn up for the hearing. There is still a burden of responsibility on the employer to give the employee every opportunity to attend, unless you can prove they received the invite letter, therefore they should be invited to another hearing. If they fail to turn up for the second time then usually it can be considered reasonable to dismiss them.
If they have less than 2 years, then the burden is a lot less.
That said, if it is out of character for missing person, then quickly attempt contact with their next of kin, friends or family as it may be for mental health reasons and they may be at risk. If anyone is duly concerned about their safety then contact their local CRISIS team, one of the recognised charities, or the Police. It may question how current and expansive ICE (In Case of Emergency) information is.
In each of the described cases the employees all had a number of rights that must be considered and offered. Our advice and support is offered on a case by case basis, as each situation is different. For consistency you will, wherever possible, deal with the same consultant.
When such situations arise, why not let us support you through the process by providing you with the right documents, letters and advice when you need it.
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