You never know what employment issues are likely to affect your business. Here are a selection of typical situations that we support and advise our clients on:
Firstly we would ascertain the reasons for the loss of a contract. Redundancy may not be the appropriate action. 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.
Purely from an employment perspective we have to consider if they are classed as a worker. If so, then they may be entitled to some substantial rights, such as paid holidays for the time they have been working with you. Additionally, you may want to consider your tax risks.
There are a number of questions to ask about the three occasions where you have had to raise concerns with this employee. 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 propose 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. 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.
It often happens where the employment relationship become worn and both parties, in their own minds, know that they really should part company. In such cases 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, usually for some financial compensation.
It can feel morally wrong but you are acting in the best interests of the business. Equally, the employee is still entitled to be treated fairly and reasonably and not to suffer 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.
In theory, the dismissal should be straightforward given that it is correctly informed in writing. However, 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.
Until a written resignation is received with a clear notice or termination date 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 common for the employee 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.
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.