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Dismissing an Employee - Less Than 1 Years Service

Discussion in 'Employment & HR' started by msharron, Nov 9, 2017.

  1. msharron

    msharron UKBF Regular Full Member

    285 54
    Question, I'm about to engage a solicitor but I wanted some feedback.
    I run a small business, there are 5 of us, including myself.

    I employed a young adult as an apprentice.
    He has been a full-time member of staff for little under a year.

    Towards the end of his apprenticeship, the employee in question suffered a psychotic episode and was sectioned under the mental health act. The episode was brought on by excessive consumption of marijuana.

    Taking the view, he's just a kid and he's screwed up/everyone deserves a second chance, I kept his job open for him and had to fight the apprentice company not to kick him off the course. He was prescribed antipsychotic medication, returned to work 3 months later and I gave him a stern warning at the time that he couldn't afford to drink or smoke again or he risked a relapse.

    Sure enough, less than a year later he's fallen back into old habits and I noticed a deterioration the last month of his ability to perform his job. His attention to detail deteriorated to the point where the mistakes he was making cost the company a significant amount of money and his ability to complete tasks within an acceptable timeframe/competently diminished. His punctuality slipped, he did not keep a log of tasks as requested and work returned was gibberish/riddled with mistakes.

    He excused himself from the office about two weeks ago without telling me why, walked out and refused to answer phone calls.

    As an employer, I have an expectation that an employee will turn up to work on time, sober and able to perform your duties as directed.

    I issued him with a written warning stating

    "I understand you are still prescribed antipsychotic medication. Following exchanges with yourself and observing your behavior I am of the belief consumption of intoxicants mixed with your medication are having an adverse effect on your ability to perform your job and I am also concerned for your general well being.

    In view of the above and the amount of time you have already taken off this year, this email serves as a final written warning."


    The employee is still signed off, however, has sent me an email with a number legal and personal threats - he's clearly not in a positive state of mind.

    This isn't what I signed up for when I started the company. I was going to give him a chance to recompose himself, but the email containing a combination of both legal and veiled threats, unreasonable demands and an outright admission that he intends to hold me to ransom is the final straw.

    As I understand it, I can end someone's employment without reason if they have worked for less than two years or I could simply make him redundant.

    I have engaged a solicitor for advice but would be interested to hear from anyone with similar experiences.
     
    Last edited: Nov 9, 2017
    Posted: Nov 9, 2017 By: msharron Member since: Feb 28, 2014
    #1
  2. pen2670

    pen2670 UKBF Regular Free Member

    418 104
    It would have been better to seek advice before sending that email then you could have disciplined or dismissed him for being awol (simple). Bringing into it his medical problems (potential disability) and not following procedure potentially makes it more complicated and I'd suggest you consult one of the experts (@Employment Law Clinic or @Newchodge ) on here before saying another word to this employee.
     
    Posted: Nov 9, 2017 By: pen2670 Member since: Mar 1, 2012
    #2
  3. msharron

    msharron UKBF Regular Full Member

    285 54
    The idea was to give the employee a stern reminder that he couldn't afford to comsume intoxicants of any kind EVER else risk a relapse.

    My expectation was he would realise he had made a huge error of judgement, be apologetic and I could support him with his recovery.

    I
     
    Posted: Nov 9, 2017 By: msharron Member since: Feb 28, 2014
    #3
  4. Newchodge

    Newchodge UKBF Big Shot Free Member

    9,955 2,538
    Forget how long he has been a full time employee. When did your employment relationship start? Ie, when was the first day for which you paid him any money?

    Also, if you are seeking legal advice it is, generally, not sensible to get forum-style advice. If your solicitor advises something that I have advised against, whose advice will you take?

    Do you have medical evidence of that or is it your belief, based on whatever.
     
    Posted: Nov 9, 2017 By: Newchodge Member since: Nov 8, 2012
    #4
  5. Awinner2

    Awinner2 UKBF Regular Free Member

    256 45
    Do not contact him again until your solicitor has given their advice. You could be digging a deep hole, even if your intention is one of concern for the young man.
     
    Posted: Nov 9, 2017 By: Awinner2 Member since: Aug 4, 2017
    #5
  6. msharron

    msharron UKBF Regular Full Member

    285 54
    I know this is a forum. Just curious to hear other people's experiences.

    I engaged a solicitor yesterday.

    The relationship started with the apprenticeship scheme. Feb 2016.
    He became a full-time employee in June 2017.

    I responded to his last communication informing him that I would not respond any of the points raised in his email until he was declared fit to return to work.
     
    Posted: Nov 9, 2017 By: msharron Member since: Feb 28, 2014
    #6
  7. Employment Law Clinic

    Employment Law Clinic UKBF Big Shot Full Member - Verified Business

    3,158 1,488

    You can typically dismiss him without reason with less than two years’ service; using excuses such as redundancy is just silly, unless you can demonstrate a genuine redundancy process that resulted in his position being selected for redundancy – you’d be creating unnecessary problems for yourself, having to potentially explain the reason for dismissal.



    And his expectation, in writing to you now with legal threats, is that you now realise you made a huge error of judgment.

    Terminating the employment is straightforward, and doesn’t require nonsense pretence, such as a redundancy. A week’s notice, no reason given, and the employment is terminated. (Disability shouldn’t come into it, if the reason is substance abuse.)

    However, you also have an apprenticeship contract, so a subtle difference. You can still terminate the whole relationship, without issue. But to cover your back, you need to ensure you have grounds to terminate the apprenticeship – a simple disciplinary investigation & hearing should suffice. You appear to have decided upon a disciplinary outcome, issuing a final written warning, without any right of reply – not a fair process.


    You should get away with it, but


    you need to decide what you signed-up for. You had the chance to dismiss, but wanted to give him a second chance – a chance he could just have easily have found outside your employment. If you didn’t sign-up to be nice, invite difficulties, nip them in the bud in future.

    (If you want to be a nice, accommodating employer, great, there’ll be plenty of employees that will appreciate you, but don’t expect it to always be reciprocated.)

    Your solicitor should be able to recover the matter with some more paperwork/letters, put this issue away by justifying the dismissal & associated termination of the apprenticeship, but in future, it’s better to consult before you issue a warning, let alone take further disciplinary action, not after.


    Any disciplinary notice should only be issued after giving the employee a chance to reply. Never issue a disciplinary warning without something of a hearing – it’s simply not fair, and becomes unreliable when it may be needed.


    Karl Limpert
     
    Posted: Nov 10, 2017 By: Employment Law Clinic Member since: Aug 10, 2009
    #7
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  8. msharron

    msharron UKBF Regular Full Member

    285 54
    Ive talked to ACAS
    I signed up with the Sussex Chamber of Commerce for HR support
    About to speak with our business insurance provider.

    Following the email, I currently view the employee as an unacceptable risk to business continuety.

    Im going to wait till he's declared fit to return to work before making a final decision.

    Understood on the wriiten warning and I can easily recind it if necessary.

    Just shocked and dissapointed.
     
    Posted: Nov 10, 2017 By: msharron Member since: Feb 28, 2014
    #8
  9. Newchodge

    Newchodge UKBF Big Shot Free Member

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    What happened to the solicitor you engaged?
     
    Posted: Nov 10, 2017 By: Newchodge Member since: Nov 8, 2012
    #9
  10. msharron

    msharron UKBF Regular Full Member

    285 54
    The equality act leaves me in a difficult position. The 2-year rule doesn't apply due to the employee's disability.

    I've been advised to try a conciliatory approach and put an employee handbook in place.

    Lesson learned thus far. What doesn't kill me, makes me stronger I guess.

    Solicitor is a last resort, and my insurance company advised they will appoint one on my behalf if necessary.
     
    Posted: Nov 11, 2017 By: msharron Member since: Feb 28, 2014
    #10
  11. Chris Ashdown

    Chris Ashdown UKBF Legend Free Member

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    I would myself forget the solicitor they always fully up to employment law where a HR expert like Karl Limpert above is fully uptodate that's all he does
    It sounds like you may be over complicating things
     
    Posted: Nov 11, 2017 By: Chris Ashdown Member since: Dec 7, 2003
    #11
  12. Newchodge

    Newchodge UKBF Big Shot Free Member

    9,955 2,538
    You can't make it unhappen.

    @Employment Law Clinic I thin the apprenticeship has ended. While I agree that there is no disability claim if the cause of the impairment is drink or drugs, I doubt that the medical profession would put someone on long term anti-psychotic medication if the sole cause of their psychotic episode was marijuana. Which may mean that the equalities act comes into force.
     
    Posted: Nov 11, 2017 By: Newchodge Member since: Nov 8, 2012
    #12
  13. Employment Law Clinic

    Employment Law Clinic UKBF Big Shot Full Member - Verified Business

    3,158 1,488
    The Equalities Act is, as is often the case, entirely irrelevant, just causing an unnecessary distraction.


    If the employment was possibly being terminated due to the mental health issues, the Equality Act would (rightly) provide recourse to the tribunals. But the employment (and any apprenticeship) would be terminated due to this guy presenting for work allegedly under the influence of marijuana – use of which is not protected by equality laws.


    As long as the guy has a chance to respond to the allegations, and fair findings conclude that he has been presenting under influence, there’s enough to terminate without concern – so long as there’s a paper trail to support the actions.



    Karl Limpert
     
    Posted: Nov 11, 2017 By: Employment Law Clinic Member since: Aug 10, 2009
    #13
  14. The Byre

    The Byre UKBF Ace Free Member

    7,487 2,906
    An interesting thread and one that underlines the need for adult supervision (i.e. proper legal advice) BEFORE one acts and not after the employer has made a dog's breakfast of the whole issue.
     
    Posted: Nov 11, 2017 By: The Byre Member since: Aug 13, 2013
    #14
  15. msharron

    msharron UKBF Regular Full Member

    285 54
    The dogs breakfast was me sending a written warning. I have since recinded the warning and taken advice on the matter.

    Ive learned a LOT the past week as to what I can/shouldn't do.

    Ive invited the employee for a coffee on neutral ground, hopefully he is receptive to reconciling and an offer of support/modified working conditions.

    He's annoyed that I put him on SSP, but as a small business im going to struggle to pay him a full wage if he's not producing anything and the impression I got was that he expects me to pay him his full sallary whether he's in or not (he has already had 3 weeks off since June this year not including the 3 weeks hes just had off).

    He also now wants to set the terms of his employment e.g. working from home, training himself and wants more money.

    The angle he's attempting to play is that I am responsible for this latest breakdown due to stress which simply is not true.

    Ill keep the thread updated as this plays out.
     
    Posted: Nov 12, 2017 By: msharron Member since: Feb 28, 2014
    #15
  16. msharron

    msharron UKBF Regular Full Member

    285 54
    The key issue I have is that he apoears to think pay is a right, from my point of view each employee needs to justify their pay cheque.

    That means work assigned is completed under supervision, work is completed within an acceptable timeframe and to a high standard of quality so we can invoice clients before the end of a month and I can pay wages.

    The next point of contention will be he is signed off as fit for work next week, is refusing to come to the office and demanding to habe his full pay reinstated and for me to pay the difference between SSP and his regular sallary for the time he was off.
     
    Posted: Nov 12, 2017 By: msharron Member since: Feb 28, 2014
    #16
  17. Newchodge

    Newchodge UKBF Big Shot Free Member

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    All of this should be covered in his contract Just say no. You don't owe him anytrhing.

    You never did answer my question, do you have medical evidence that his breakdown was caused by use of marijuana?
     
    Posted: Nov 13, 2017 By: Newchodge Member since: Nov 8, 2012
    #17
  18. msharron

    msharron UKBF Regular Full Member

    285 54
    Beyond his own admission, and speaking to his father who confirmed the cause was "weed induced psychosis," I would need to request a copy of his medical records which he has the right to refused.
     
    Posted: Nov 13, 2017 By: msharron Member since: Feb 28, 2014
    #18
  19. Chris Ashdown

    Chris Ashdown UKBF Legend Free Member

    9,633 1,938
    You can be a good employer and make allowances to help your staff, but some will just treat you as a soft touch and take as much as they can, I am afraid you are a caring employer who is being taken for a ride and for some strange reason you refuse the help and assistance of two HR experts and seem determined to dig yourself further into a hole

    Your first duty is to look after your company and also any remaining staff who must by now consider you a very lax boss
     
    Posted: Nov 13, 2017 By: Chris Ashdown Member since: Dec 7, 2003
    #19
  20. Newchodge

    Newchodge UKBF Big Shot Free Member

    9,955 2,538
    Simple. During your neutral coffee conversation you point out that, as soon as he is fit for work he will be required to resume his normal duties and fulfill them properly. That failures will be dealt with via your disciplinary/ capability procedures, and that he is not entitled to anything more than SSP if he is unfit to work. No negotiation.

    If he is demanding special treatment because of his condition then you will require a full Occupational Health report to establish whether he falls within the disabled category of the equalities act. If he is disabled you may need a rethink.
     
    Posted: Nov 13, 2017 By: Newchodge Member since: Nov 8, 2012
    #20