Dismissal/ hearing an appeal

[Stuart2022]

Hello

I've recently dismissed an employee in absentia after he refused to attend the hearing- unreasonably in my view and of the solicitor who agreed to give me a few minutes pro bono advice.

He has now written asking to appeal the decision, demanding an independent manager (good luck as I am the sole Director) and he has stated he will give 'information' for his appeal only at the hearing. I was under the impression that he is required to give some reasonable grounds to justify the appeal but the above mentioned solicitor says it's his right. I am worried that an appeal will then have to be suspended again whilst his 'information' is considered.

I have no idea what his game plan is as he's been here only a year, can't claim unfair dismissal and has not been discriminated against. Nevertheless he's continuing with this even though he's told me he hates the job.

Any ideas, please???

Thanks, Stuart

 

[kulture]

I am confused. If he was only employed for a year, why not just sack him saying that it wasn’t working out. Why go to the trouble of a disciplinary hearing? Why did the solicitor not advise you to just sack him?

 

[Stuart2022]

I am confused. If he was only employed for a year, why not just sack him saying that it wasn’t working out. Why go to the trouble of a disciplinary hearing? Why did the solicitor not advise you to just sack him?

My understanding is that during a probationary period you can literally summon them to your office and sack them there and then without giving a reason.

He was given a date, but demanded an adjournment, which is his right. We then agreed on another date but he then refused to attend at short notice on the most spurious reason.

His dismissal is open and close so I cannot understand what he's playing at. I can only guess that he's either hoping to cost me so much in legal fees that I offer him some money to go away or his union (unite, worst luck) are hoping I make a procedural error, but even then he hasn't 2 years and it really is such a simple case that no one would believe I'd act differently for anyone of any ethnicity, so he'll struggle with a race claim too.

Anyway, we are in this position and whether or not I need to grant an appeal without some reason.

Stuart.

 

[Stuart2022]

I've just twigged what is happening.

As it was the UNION REP who refused to attend (unreasonably and spurious in my opinion) under S. 105 of the Employment Act, the staff member is permitted to have his/her choice of 'companion' and regardless of who is right or wrong, even if they've been there less than 2 years, refusal to accommodate their request- reasonable or not- for their companion to attend is an automatic unfair dismissal.

This is under the TALON Vs SMITH ruling.

These union reps are clever f*****s.

 

[WaveJumper]

Why did your solicitor not pick this detail up

 

[kulture]

It seems to me, there’s a lot of detail here, that’s not being said. In particular, why did you go down a disciplinary route rather than just dismissing. Further you appear to have already made up your mind before the hearing. This is a bad idea and would suggest that you get paid for professional advice before you dig yourself in any deeper.

 

[Stuart2022]

It seems to me, there’s a lot of detail here, that’s not being said. In particular, why did you go down a disciplinary route rather than just dismissing. Further you appear to have already made up your mind before the hearing. This is a bad idea and would suggest that you get paid for professional advice before you dig yourself in any deeper.

With great respect, that is highly speculative. I ALWAYS afford staff the right to a full hearing, even when on probation when they do not have the statutory right to it; the reason I do that is many, many years back I dismissed a good probationary member of staff summarily- as was my right- only the reason for it were absolutely false and the supervisor who brought the charges was using him to cover his own misconduct. So I ALWAYS have a disciplinary hearing, whether legally required or not. NB this deception was found out, he was offered his job back with back pay and an apology, but he'd already moved on. ALWAYS hold a full hearing. None of us are infallible. Even me.

In this case it was an open and shut case, yes. He committed the offence, contradictory to company rules and statutory precedent. However, I was open minded that there may have been genuine mitigating circumstances in which he was forced into this action- which is the whole point of the hearing. I am not aware of any procedure that allows you to just sack someone without a hearing first, once they have completed probation.

Why did your solicitor not pick this detail up

I do not know. Perhaps because it was a quick bit of advice rather than me presenting a full folder of paperwork for them to review. In any case, one of the other solicitors in the firm told me this morning that he still can't bring an action under that procedure due to another precedent that I didn't really follow. But nonetheless it is still something for employers to be aware of; unite union isn't known as a collection of baskets for no reason.

Stuart.

 

[HFE Signs]

Give him the meeting, listen to his appeal and respond accordingly - the decision is still yours, treat it as a formality and document it.