Gross Misconduct after a resignation

[Itsasecret]

Employee No 1 is currently on maternity leave has offered us her resignation. (thank god as we didnt want her back! Trouble maker!)
She was due to return on 21st Nov
Her contract stipulates a one month notice period.
So we would have expected her resignation by COP on 21st Oct
She emailed her resignation on 22nd Oct
Which is one day later than her one months notice (or am I wrong??)

Also.. another colleague (Employee No2) also on maternity recently decided to not return to work also... and handed back her company car and mobile this week.
On her phone we have found numerous texts between the two of them. With Employee No 1 slagging off the MD and all Directors and telling lies...

Employee No 1 is now 'working' her notice period whilst on the 12th month of maternity leave and she has accrued 11 months of annual leave.

What are our rights? If her text messages are deemed gross misconduct can we take any action? Do we have to pay her her annual leave?
This girl has caused us nothing but problems (she was apparently sacked from her last job... as a Doctors Receptionist, because she started offering her own form of medical advice to patients on the phone!!!)

We are glad to be rid of her... but do we have any grounds for any action and is it even worth it?

 

[kjmcculloch]

I don't know the official answer, but why do you want to sack someone who is leaving anyway? What are you gaining other than pushing her before she jumps?

 

[StevensOnln1]

You still have to pay all outstanding wages including unused holiday if you dismiss someone.

Sent from my GT-N5120 using UK Business Forums

 

[Itsasecret]

Ok so we have to pay her almost a whole YEAR of annual leave!! Great!
How about the fact she handed in her notice later than she should have?
Surely if your notice period is one month.. that is one calendar month.
So if you are due back at work.. after your maternity on 21st of the month.. you need to have resigned by close of play on the 21st of the month prior?
She didnt resign until the following day?
Can we dock her one day of her annual leave pay?

 

[OldWelshGuy]

Whatever holiday pay she is entitled to she will still be entitled to regardless of if you sack her or not.I am not sure where you stand with the late resignation, I would assume she was absent which means she doesn't get her pay.

Did you only pay SMP, or did you pay an amount above that? if the amount above that then you may have a case for clawing back any additional payment over and above SMP.

 

[Itsasecret]

we paid only SMP
Seems like we cant do anything... nor is there anything worth doing!

 

[StevensOnln1]

How did she manage to accrue 11 months of annual leave? You can tell he she either has to turn up and work on 21st November or book it as annual leave, otherwise she doesn't get paid for it. It is illegal to withhold pay that an employee is entitled to receive and doing so could land you in front of an employment tribunal, creating further cost for you.

 

[Itsasecret]

She is on maternity leave
She left us on 20th Nov last year... and notified us in September that she then intended to extend her leave taking the full 12 months she is entitled to
Which would have had her returning to us on 21st Nov this year
She has therefore accrued 11 months worth of annual leave in 2013 (or 10 months and 3 weeks if we want to be fussy!)

 

[UKSBD]

She is on maternity leave
She left us on 20th Nov last year... and notified us in September that she then intended to extend her leave taking the full 12 months she is entitled to
Which would have had her returning to us on 21st Nov this year
She has therefore accrued 11 months worth of annual leave in 2013 (or 10 months and 3 weeks if we want to be fussy!)

Why is she entitled to 12 months?
edit: why does it matter that she is entitled to 12 months if you don't have to pay for all of it?

 

[OldWelshGuy]

Are you talking about the leave that is acrued as a result of 12 months employment, as in 1.5 days per month etc, because you seem to be putting it across that she is entitled to a years pay

 

[Richie N]

Does it really matter if her notice was handed in a day late, if you want rid then let her go on the date that she wants to.

 

[Itsasecret]

she accrued 10 months and 3 weeks annual leave...
whilst on maternity leave.
she took the full 12 months that all women are entitled to.. before returning to work or resigning. She received SMP so has not been paid by us for the last few weeks at all! As SMP isnt paid after a certain period.

I want to know - do we have to accept her being late handing in her notice AND pay her her full holiday entitlement for the period accrued.

Or can we insist she come back on 21st Nov for one day - or take it as one of her days holiday?

 

[Itsasecret]

Why is she entitled to 12 months?
edit: why does it matter that she is entitled to 12 months if you don't have to pay for all of it?

She is entitled to 12 months if she chooses to take it and yes I know we dont pay for it all!

 

[Itsasecret]

Does it really matter if her notice was handed in a day late, if you want rid then let her go on the date that she wants to.

yes.. but whilst at work.. her time keeping was fairly poor
always 10 minutes late each day... again.. does it really matter? 10 minutes? it isnt much is it!
You add it up and its a lot!
If everyone handed in their notice a day later than they should... then it all adds up?
Why should we effectively give her an extra day's leave if we dont have to?

 

[Richie N]

yes.. but whilst at work.. her time keeping was fairly poor
always 10 minutes late each day... again.. does it really matter? 10 minutes? it isnt much is it!
You add it up and its a lot!
If everyone handed in their notice a day later than they should... then it all adds up?
Why should we effectively give her an extra day's leave if we dont have to?

Pay her the month's notice.
Can't you put her on garden leave or something? sounds like you are best rid and best just putting it behind you, move on. Put your efforts into their replacement.

 

[OldWelshGuy]

she accrued 10 months and 3 weeks annual leave...
whilst on maternity leave.
she took the full 12 months that all women are entitled to.. before returning to work or resigning. She received SMP so has not been paid by us for the last few weeks at all! As SMP isnt paid after a certain period.

I want to know - do we have to accept her being late handing in her notice AND pay her her full holiday entitlement for the period accrued.

Or can we insist she come back on 21st Nov for one day - or take it as one of her days holiday?

how the hell can she acrue 10months and 3 weeks holiday during pretty much the same time period? that doesn't make sense at all. are you saying that your company policy is a days holiday for every day worked??

 

[Itsasecret]

how the hell can she acrue 10months and 3 weeks holiday during pretty much the same time period? that doesn't make sense at all. are you saying that your company policy is a days holiday for every day worked??

sorry re-read and sounds misleading.. she has accrued annual leave during the 10 months and 3 weeks she was on maternity in 2013
so almost a whole years worth of holiday allowance...

 

[Itsasecret]

Im also now wondering... whether.. if she knowingly had no intention to return to work full time... has she committed fraud by asking her employer to write a letter to her mortgage company stating that she was coming back full time!

clearly we havent broken the law - as we were told she was due back.. but there is evidence to suggest she knew a long time ago she wasnt coming back... yet just weeks ago asked us to write a letter to her new mortgage lender stating shw was due back to full time employment on 21st nov

Surely this is fraud? Or obtaining monies by deception?

 

[Bazza500]

I can't see what that has to do with you. That's between her and her mortgage company.

If what is annoying you is that she was 10 minutes late starting work on a regular basis then you should have dealt with that at the time.

If I was you I would pay her what she's due including the day she may or may not be entitled to and get rid of her before she changes her mind.

 

[UKSBD]

Is there more to this than you let on?

A few hours late giving you notice, poor time keeping, a few snidely text messages and you're trying all you can to avoid paying an extra days leave and now talking about fraud and getting her in trouble with the mortgage company.

It's not your husbands baby is it?

 

[kjmcculloch]

I'd take a step back and think about things. It sounds like its becoming very petty.

She wants to leave, you want her to. It seems to me though, that while you want her to go you want to work it up her before she does. It's really not worth it in my experience.

 

[Itsasecret]

Is there more to this than you let on?

A few hours late giving you notice, poor time keeping, a few snidely text messages and you're trying all you can to avoid paying an extra days leave and now talking about fraud and getting her in trouble with the mortgage company.

It's not your husbands baby is it?

she knew she wasnt coming back to work at all... yet asked us... her company to provide her with a letter stating she WAS coming back.. so she could obtain a new mortgage... That is fraud surely?

the lender now believes she is going to be working full time and lent her money accordingly
she mis-lead them

 

[Bazza500]

In danger of becoming repetitive but.......

I can't see what that has to do with you. That's between her and her mortgage company.

 

[Itsasecret]

In danger of becoming repetitive but.......

Im the one that wrote the letter to the mortgage lender!!!!

 

[Bazza500]

...and at the time what you wrote was correct to the best of your knowledge. It is now for her to inform the mortgage company of any change in circumstances.

 

[Itsasecret]

yes to the best of our knowledge it was.. but now we have found written proof of her intention to not return to work... so she knew she wasnt returning when she asked us to write the letter

 

[Newchodge]

What, exactly, are you trying to achieve here?

You have an employee who intends to leave. You want her to leave. Pay her what she is due - and her holiday entitlement is due even if she is dismissed for gross misconduct - and get on with your life.

Gossiping about the company, by text, to another employee, does NOT constitute gross misconduct. It is standard behaviour in many organisations. Doing so to a client may be a cause for action, but it is still likely not to be gross misconduct.

 

[PrestonLad]

Surely you're wasting far too much mental energy on this. Both to save you one day's pay, and to try to shop her to her mortgage company - when it seems that the only 'proof' you have is in a few text messages - that are very unlikely to be considered admissible evidence anyway.

Crack open a bottle of celebratory red. She's going... and so saving you an absolute fortune.

Chill. Spend your energy on making money for your company.

 

[ianm10]

Is there an underlying reason why two staff do not want to return to this company? I am sorry, but based on what I have read and understood here, I too wouldn't want to work in such a petty environment. Maybe a closer look at management and staff morale would be a suggestion.

I manage a team if circa 30, and fully appreciate that it is give and take. If you show some leniency with your staff (I.e. the occasional ten mins here and there), then you usually get more back in return. Obviously I don't know your exact circumstances, but my feedback is based on my own personal experiences managing staff.

 

[Steve Sellers]

Hold on a minute. Nobody has asked the most important question. When does your holiday year run and have they given notice of their intention to take leave?

What does the contract say about carrying leave over a year?

 

[OldWelshGuy]

Steve I have asked a couple of times how much leave she has and is entitled to but keep getting told 10 months 3 weeks, which is around 6 years worth of holidays. I seem to be banging ym head against a wall.

If the year ends April, then if the contract states all holidays muct be taken by that date then she will have forfieted them surely? I can't see how holidays can just be stacked up like this.

 

[Newchodge]

Steve I have asked a couple of times how much leave she has and is entitled to but keep getting told 10 months 3 weeks, which is around 6 years worth of holidays. I seem to be banging ym head against a wall.

If the year ends April, then if the contract states all holidays muct be taken by that date then she will have forfieted them surely? I can't see how holidays can just be stacked up like this.

I think the OP means that she has accrued 10 months worth of holidays ie 10/12 of her annual entitlement, which has built up during her 12 months maternity leave.

Generally leave not taken during the leave year would be forfeited, but leave accrued during maternity leave can be carried forward to the next year if it cannot be taken due to maternity leave absence.

 

[Merchant UK]

I think the OP means that she has accrued 10 months worth of holidays ie 10/12 of her annual entitlement, which has built up during her 12 months maternity leave.

Generally leave not taken during the leave year would be forfeited, but leave accrued during maternity leave can be carried forward to the next year if it cannot be taken due to maternity leave absence.

So she gets maternity leave paid for as well as accruing 10 months holiday pay? 10 months as in 40 weeks worth of holiday pay??? so she gets 12 months holiday each year? When was she ever meant to go to work she's having a holiday every day

 

[Newchodge]

So she gets maternity leave paid for as well as accruing 10 months holiday pay? 10 months as in 40 weeks worth of holiday pay??? so she gets 12 months holiday each year? When was she ever meant to go to work she's having a holiday every day

Unless the employer tops up the statutory scheme, which seems unlikely in this case, she only gets paid for 39 weeks maternity leave, and none of that is at full pay. She can remain on maternity leave for up to 12 months.
She continues to accrue holiday while on maternity leave. That is the law.

She doesn't get 40 weeks holiday pay. If she is on maternity leave for 40 weeks she accrues holiday at the normal rate as if she had been working for those 40 weeks, so she would be entitled to 4.3 weeks holiday after 40 weeks maternity leave.

 

[Itsasecret]

Unless the employer tops up the statutory scheme, which seems unlikely in this case, she only gets paid for 39 weeks maternity leave, and none of that is at full pay. She can remain on maternity leave for up to 12 months.
She continues to accrue holiday while on maternity leave. That is the law.

She doesn't get 40 weeks holiday pay. If she is on maternity leave for 40 weeks she accrues holiday at the normal rate as if she had been working for those 40 weeks, so she would be entitled to 4.3 weeks holiday after 40 weeks maternity leave.

Perfectly explained and thank you!!!!

 

[Itsasecret]

So she gets maternity leave paid for as well as accruing 10 months holiday pay? 10 months as in 40 weeks worth of holiday pay??? so she gets 12 months holiday each year? When was she ever meant to go to work she's having a holiday every day

10 months as in 40 weeks worth of holiday pay??? NO!!!! She has been on mat leave for 10 months of the year and so accrues holiday allowance during that time.. same as if she was at work!!!
10/12 of her whole allowance for the period
CRIKEY!

 

[Top Hat]

I'm glad I don't work for you.

Pay her the money she's due, forget the late notice, forget the letter to her mortgage company and get on with productive, important stuff.

 

[Steve Sellers]

Steve I have asked a couple of times how much leave she has and is entitled to but keep getting told 10 months 3 weeks, which is around 6 years worth of holidays. I seem to be banging ym head against a wall.

If the year ends April, then if the contract states all holidays muct be taken by that date then she will have forfieted them surely? I can't see how holidays can just be stacked up like this.

The law is complex and subject to consultation. The Tribunals are also not enforcing the law consistently.

Yes they must be taken - save as for where they haven't had the opportunity to do so by reasons of say sickness or pregnancy. However the law is complex in this area and lots of factual considerations must be made.

e.g. was notice given, has the holiday year expired, could the employee have taken the leave etc etc etc.

 

[tony84]

If she knew she had no intention of coming back then yes, its mortgage fraud.

But, this started off by you saying she handed in her notice a day late... so? Whats a day? You have wasted a day or 2 on this post! You are seeing the back of a member of staff you want to get rid of, you dont have to waste time with a disciplinary or tribunals - be thankful, draw a line under it and move on.

If i had the time to waste on matters like this i would be wondering what im doing wrong.

 

[Steve Sellers]

Excellent post Tony - common sense is not dead! (I'm just looking at it from the p.o.v. of reducing the holiday pay liability)