Bit of a tricky one....

[Sid2021]

An employee was called for a disciplinary meeting on the grounds of gross misconduct. The day they were informed of the disciplinary meeting they produced a sick note along with their notice period. (very common I've been informed). Their sick note covered the notice period so they didn't come into the workplace to attend their disciplinary meeting. I can't postpone the disciplinary meeting for long as their notice period runs out in three weeks time. If the notice period runs to fulfillment without the dsiciplianry going ahead they will be entitled to SSP and payment for holidays accrued.

My question is, what can I do about this as the employee carried out gross misconduct which I have been unable to address with them "fairly" according to ACAS? This would have warranted instant dismissal without notice or accrued holiday pay. Now they are getting SSP and will be paid for accrued holidays.

Any advice is appreciated.

 

[Newchodge]

An employee was called for a disciplinary meeting on the grounds of gross misconduct. The day they were informed of the disciplinary meeting they produced a sick note along with their notice period. (very common I've been informed). Their sick note covered the notice period so they didn't come into the workplace to attend their disciplinary meeting. I can't postpone the disciplinary meeting for long as their notice period runs out in three weeks time. If the notice period runs to fulfillment without the dsiciplianry going ahead they will be entitled to SSP and payment for holidays accrued.

My question is, what can I do about this as the employee carried out gross misconduct which I have been unable to address with them "fairly" according to ACAS? This would have warranted instant dismissal without notice or accrued holiday pay. Now they are getting SSP and will be paid for accrued holidays.

Any advice is appreciated.

Had the disciplinary investigation been completed?
Had the employee received all the necessary paperwork for the disciplinary hearing?

If you are absolutely confident that everything has been done properly up to now you can write to the employee asking them that they still attend the hearing, which will go ahead whether or not they can attend. Offer them the chance to make written representations if they cannot attend. Then hold the hearing on the original (or re-scheduled) date. AT THAT POINT AND NO EARLIER can you decide whether they carried out an act of gross misconduct, whether that act warrants dismissal and whether that dismissal should be without pay.

The fact that you have already made the decision that they will be dismissed without notice and without holiday pay(the latter immediately giving them a succesful unlawful deductions tribunal claim) makes it slightly more likely that they will win an unfair dismissal and a wrongful dismissal claim as well.

If you continue with the hearing and summarily dismiss you will have saved less than £100 per week in SSP. The probable resultant tribinal claim will cost you thousands, even if you win.

PS You cannot withhold accrued outstanding holiday pay.

 

[Sid2021]

Had the disciplinary investigation been completed?
Had the employee received all the necessary paperwork for the disciplinary hearing?

If you are absolutely confident that everything has been done properly up to now you can write to the employee asking them that they still attend the hearing, which will go ahead whether or not they can attend. Offer them the chance to make written representations if they cannot attend. Then hold the hearing on the original (or re-scheduled) date. AT THAT POINT AND NO EARLIER can you decide whether they carried out an act of gross misconduct, whether that act warrants dismissal and whether that dismissal should be without pay.

The fact that you have already made the decision that they will be dismissed without notice and without holiday pay(the latter immediately giving them a succesful unlawful deductions tribunal claim) makes it slightly more likely that they will win an unfair dismissal and a wrongful dismissal claim as well.

If you continue with the hearing and summarily dismiss you will have saved less than £100 per week in SSP. The probable resultant tribinal claim will cost you thousands, even if you win.

PS You cannot withhold accrued outstanding holiday pay.

Thank you for your reply.

I need to stress that no decisions have been made yet about the outcome of the hearing. I probably wasn't clear, as I was stating that gross misconduct usually results in instant dismissal without notice. Thank you for clarifying about accrued holiday pay.

 

[Talay]

ACAS are a bit like that 1970s left wing trade union who want you to spend 6 months going back and forth, measuring this and that, arguing every point under the sun, offering the incompetent employee 379 chances to mend their ways and yet not once considering the cost of time or salary being wasted on the soon to be dismissed employee.

In effect, they fundamentally have no sense of commercial reality.

Adhering to their best practice can be streamlined to a minimum and instead of aiming for 10 out of 10 ticks against their criteria, hitting 7 or 8 out of 10 is usually enough and on a cost benefit analysis, paying out every now and then is less costly than going through the motions for every occurrence.

Suspend and set the disciplinary meeting in the same letter making it the bare minimum in advance to get your ACAS code of practice box ticked. If they go sick, then you know you are being played but if you can drag them off their deathbed to your office, go through the motions, fire their sorry ass and send out the appeals notification, asking whether they wish it to be in person or not. Prep the appeal not upheld paperwork and press send when you reach the due date.

OK, a little tongue in cheek but do your number crunching and what if scenarios first. You know your baseline costs so have your compromise agreements drawn up and off you go to the races.