Dismissing staff

[Vanmanexeter]

Hi

I Wrote a post a couple of weeks back regarding a member of staff having frequent days off "Sick"

I had a call from him this morning saying that he thinks he has broken his leg playing football. This happened last night but he didn't bother phoning me until 20 minutes before he was due to start work.

This as far as I am concerned is the final straw and he has proved to be unreliable too many times.

I have never had to fire anyone before so advise please. He has only been working for me for 12 weeks so how do I go about dismissing him?

In my contract its 1 weeks notice from me but I don't want him to come back -

I have calculated his holiday and he has had 2 days more than his pro rata allowance - do I deduct this?


Do I physically have to give him the notice in writing or can i do it over the phone and follow up with a letter?

can I with hold final pay until i receive uniform back?

Do I need to worry as he will think I am dismissing him due to the broken leg?

Thanks for any advice and if there is a draft dismissal letter floating around that would be great

Thanks

 

[Newchodge]

You can telephone him to give notice and follow it up with a letter, hand delivered (through the letter box) if possible.

He is entitled to 1 full week's notice pay, even if he is not entitled to sick pay.

You can only recover over-taken holiday if his contract of employment states that you can.

You cannot withhold money due to him until he returns the uniform, however you do not have to pay him on the day his notice expires - you can pay him on the date you normally run payroll.

You should state in the letter that you are dismissing him because his attendance levels have been unsatisfactory.

 

[HRinMinutes]

Excellent advice from Cyndy, the only thing I would add, especially in the light of your other posts regarding potential underlying disability, is to ensure the letter you write to him allows for an appeal on the decision to dismiss.

 

[cjd]

You are allowed to fire anyone without reason now within 2 years of appointing them - unless he can show discrimination. So be very careful what you write about 'disability' - nothing is the best advice. Simply say that it's been clear over the last x months that things haven't been working out so thanks and goodbye.

 

[Vanmanexeter]

Thanks for the advise.
I phoned the chap about an hour ago and given him the news. I have written a letter and detailed the termination of his emplyment and given a very brief explanation saying that - as he has had so many days off in the last 12 weeks that I can no longer rely on him and that his absence is affecting my business financially - does that sound ok?

I have offered to pay him for a full week this week and a full week next week and also waive the days over he has had with holiday

any way I have just had a text from him saying a couple of things -

he had a week booked off for the start of october and he expects paying for that ??? I'm assuming he has his wires crossed somewhere. I gave him 28 days holiday and he has worked for me for 13 weeks (including 1 week notice next week) and he has taken 8.5 days holiday - i work that to be 7 days pro rata and he has taken 8.5 so 1.5 days over??

Also he said that he has read that because he is not actually working on his notice work that he doesn't have to pay tax???

I really hope someone can clarify

Thanks

 

[Newchodge]

Your contractual relationship with him ends on the final day of his employment. He has no right to any further payment after that.

He is only entitled to pay without statutory deductions if :
(i) You pay him in lieu of notice AND
(ii) He does not have a contract that states you are able to pay in lieu of notice.

The reason for this is that if, in breach of his contract, you pay him in lieu of notice, you are actually paying him compensation for breaching his contract; that compensation is free of tax.

As this does not apply, tell him that he is wrong and that you will be making the statutory deductions.

The letter sounds OK.

 

[ethical PR]

Hi

You've been generous as you only had to offer him a week and could have recovered the extra holiday pay.

Don't get into discussions with him about issues that don't relate to his dismissal

I think it would worth your while getting some paid professional HR advice from someone like Cyndy (Newchodge) so that you handle this properly and put policies and systems in place going forward, to help you manage your employment related issues.

The HMRC decides who pays tax not him.

 

[HRinMinutes]

There have been a number of cases where claims for discrimination have been dismissed as the dismissal letter allowed a route to appeal.

You do not invite an appeal on any grounds simply state he has 7 working days (or whatever your disciplinary and grievance policy states) to appeal the dismissal.

In respect of his comments re tax on payment in lieu of notice HMRC have a guideline on this http://www.hmrc.gov.uk/manuals/eimanual/eim12975.htm

The tax position on PILON (payment in lieu of notice) is not straightforward and you should not rely on forum advice on general posts of this nature. Take properly qualified, insured HR and employment law advice on the individual issue where all the facts and paperwork are considered.

I would keep the letter simple and short and just because he is raising all these questions does not mean you have to waste your time in dealing with each one as though it had some merit.

 

[Vanmanexeter]

Thanks for all the advice on this matter. Much appreciated. Now on with the task of finding a replacement. Thanks again.

 

[Mico Dabs]

Doubtless you have learned from this experience Vanman, so, taking that forwards, would it be an idea to have a 'sickness policy' written in to future employee contracts and asking current ones to sign up to confirm they have been given a copy of the policy?
Doesn't have to be War & Peace but simple along the lines that most employers on here may already follow.

I think (from being a government employee in the past) it would go along the lines of acceptable criteria being 21 Days sickness in 12 months OR 3 periods of sickness in 12 months (rolling 12 months that is).

The 'days or periods' approach catches non-genuine employees that go sick for 7 days on self cert. then return for 1 and go sick for another 7.

If their sickness approaches this cut off 'limit' it doesn't necessarily mean their job is at risk, but simply the employer will have to really take notice of the pattern that has emerged and point blank ask if they have a problem that the company can help with (by this you are caring for your employee as some may insist you have a duty of care above and beyond the H&S areas).

Return to work meetings are a good system also; it helps establish patterns of genuine or micky-takers very early on in their career and it also sends a clear message that the employer is 'switched on' and has records of previous absences which can be pulled out and referred to in the future should the employee's attendance record start to affect the needs of the business, which may, I say MAY, approach the gross misconduct area should a micky-taker 'require' hasty dismissal.

Keeping copies of sickness certs. is also worth doing.

I am sure others here will have firm advice to guide you on this.

A genuine employee deserves help when illness affects them, and this system helps you do that, whilst also giving you a mechanism to avoid what has just happened you and dismiss staff that are clearly not committed in my opinion.