Employers rights when no contract issued

[michellet79]

Hi,

We have an employee who was employed just over 1 year ago with no contract. In the last 6 months he has become aggressive at work and we have noticed alcohol on his breath after returning on a 'split shift'. We have mentioned this to him and requested that he stops. (He is a chef)
In January he became aggressive and threatening to myself, mainly verbally, after his shift. He later apologised but has refused to meet with myself and the other employer to discuss the occurence and find a solution to his problems.
We, having a holiday already booked, went away and 10 days after we returned he was on holiday.

Would we be within our rights to sack him for gross misconduct even though the incident happened 4 weeks ago? No written contract or statement of employment has ever been issued (something we are currently reviewing and putting in place).

Any advice welcome - we have never been in this situation before.

Thanks in advance

 

[LicensedToTrade]

Why have you employed someone and not issued them with an employment contract? You are duty bound to provide the 'main terms' of the contract to an employee within two calendar months. As such you have left yourself somewhat exposed as you have no 'express terms' to reference now that you want to take disciplinary action. Now you can only rely on 'implied terms' and the assured terms as laid out by UK legislation.

He has now been employed for over 12 months so now he can technically be unfairly dismissed.

 

[arcon5]

Why didn't you commence disciplinary when he came to work in a kitchen after drinking?

Thats a serious health & safety risk!!!

 

[kulture]

As you have left a bad situation run on too long, you will have difficulty sacking him now without running the risk of an unfair dismissal claim. What you should do is go get proper employment legal advice. Pay for it now to get your contracts sorted and your disciplinary procedures sorted. Also get proper help in dealing with this chef. Aggression is something that you must not tolerate. Invest money in doing this right before you loose money to a tribunal claim either from the chef or anyone else who feels threatened by the aggressive chef. Alcohol, knives and aggression is a recipe for disaster.

 

[E Storey]

Issue him with a contract, diciplinary procedure, drink at work policy and grievance procedure NOW!

they can all be downloaded off the internet....

you may also want to make sure your employer NI and PAYE payments are completely up to date.

 

[eutrans]

If you noticed alcohol on his breath when he come back on a split shift can anything actually be done??????????

This is a genuine question because if he is not getting paid for the time he is not working surely he can do what he wants(obviously within reason). Can he be prevented from having a glass of wine with his dinner????.

Goes without saying that coming into work 3 sheets to the wind is a totally different scenario.

 

[Employment Law Clinic]

Would we be within our rights to sack him for gross misconduct even though the incident happened 4 weeks ago? No written contract or statement of employment has ever been issued (something we are currently reviewing and putting in place).

Hi Michellet79,

You would be within your rights to commence disciplinary action, but until this has been done properly & fully - including hearing the employee's account of things - you would not be within your rights to determine the outcome, let alone dismiss him.

The absence of any written terms doesn't really help, but it won't be enough to make any disciplinary action unfair, as long as you issue a policy now - before formal procedures are commenced - & follow it.

Do you have a disciplinary procedure in place for other staff? If so, use this procedure, otherwise get hold of a policy (but make sure it's current - there are still plenty of free versions & guidance online (including on ACAS last time I checked) that refer to an obsolete procedure).

Getting professional assistance is advisable, and this should insure you if it all goes wrong too, so while not necessarily cheap it could save you money in the long run. There are a few of us on here that can help, or if you're a member of a professional organisation, some employers find the support services available can be helpful.



Karl Limpert

 

[sjbeale]

If you dismiss and he takes you to an employment tribunal if he wins for possible unfair dismissal he could be awarded 2-4 weeks pay for having no employment contract.

Get your documentation in place - contract and handbook then deal with the situation.

If you would advice on managing this please pm me.