Sacking an Employee

[LostForWords]

Hi,

My wife runs a small business that has 9 employees but one particular employee is giving us problems. She continually causes friction with other members of staff, argues with my wife in front of staff, and at times customers, and is generally difficult to manage. She has a very bad temperament and seems to lack the ability to control her emotions.
While my wife is very good at running her business she has been a bit lapse in her disciplinary procedures. The member of staff in question has had a couple of verbal warnings which have been documented on her file but the member of staff has not signed these. My wife has now had to present the member of staff with a final warning in writing after yet another recent incident. She has asked the member of staff to sign the warning but she has refused stating that she doesn't accept it and doesn't accept she has had prior verbal warnings. I suspect she has done this under advice from another family member who thinks he has expertise in this area but in reality doesn't. The member of staff has basically stated that if she gets fired the previous warnings are her word against my wife's. The refusal to sign the final written warning has been noted in writing.
I suspect that if there is another incident and we terminate her employment she will does her best to take it to a tribunal. While I appreciate that we need to improve the disciplinary process I have the following questions:-

1. Does she have any grounds for unfair dismissal or any chance of winning a case of unfair dismissal if we terminate her employment due to a further issue with poor conduct.

2. She has worked for us for around 3 years in total however she did leave around a year ago to start a business of her own. When that failed she asked if she could come back to work for us. We informed HMRC that he had left us and since she came back she has been with us for little over a year (since Dec 2013). As I understand it an employee can't bring a case for unlawful dismissal to a tribunal unless they have worked for a company for 2 years. Is this 2 consecutive years or can it be 2 years total even if they have left your employment.

3. She has also told us in the past couple of days that she intends to open her own business in the same industry as us, although in a different are which will not put her in competition with us. We have no issues with this as such however we found out that she has already asked another member of our staff to come and work for her when she opens up. Can poaching staff like this while in our employment be considered Gross misconduct ? She has brushed this off as a joke, however the member of staff who she asked ha the text and said she was serous about it.

We have never had to sack a member of staff in the 6 years of being in business however I really don't want this person to work for us any longer. I am fearful of her taking us to a tribunal and winning though because of our less than perfect disciplinary procedures despite the continuous poor conduct. Any legal advice from subject matter experts would be greatly appreciated, especially around point number 2. as this may make any other concerns irrelevant.

Regards,
M

 

[avecSys]

First things first..... When you gave a disciplinary with these warnings, did you have another member of staff present to take notes (your witness) and did the employee have the opportunity to have the same (their witness)? Unfortunately, if these disciplinary procedures have not been followed, then I guess the advising family member is right. You have no evidence saying the employee understands they have received their two previous warnings (no signature) and no witness to state otherwise. All notes from the procedure, plus a letter of disciplinary needs to be signed by all parties present to make this an official document, otherwise, these are just notes in a folder with no significance.

 

[LostForWords]

Where do we stand in terms of the 2 years service and the employees ability to even take us to a tribunal?

 

[avecSys]

Generally, to claim unfair dismissal, you have to have worked for your employer for at least one year if you started working for your employer before 6 April 2012 or two years if you started on or after 6 April 2012. However, there are special rules for people who have worked for their employer for less than the required amount of time.

 

[LostForWords]

Would that be 2 years continuous employment? So if they left and came back would it be from the date they started the 2nd spell of employment?

 

[avecSys]

Either way they do give special rules to some employees and cases. They could take into account that your disciplinary procedure was not done correctly and bring it up. I would cover all your bases before proceeding and would advice you to take the proper disciplinary route to save yourself the hassle. I'm sure there is something along the lines of dismissal due to behaviour in the work place but I would have to look into that. I am in IT as my current profession, but I have been in many managing roles and dealt with many troublesome employees. Unfortunately, there seems to be more laws on protecting employees rather than the employer. Is there anything substantial in her contract to proceed with a dismissal which she maybe in breach of?

 

[avecSys]

Also, does your contract state that you give three stages of disciplinary or not?

 

[LostForWords]

Hi, Thanks for all you advice. I'm actually employed in IT myself but help with the admin side of my wife's business. I think the lesson here is to get a better process in place. Unfortunately with small businesses it involves a lot of learning as you go and I guess this is a situation where we're just not prepared enough. Hopefully the employee in question will leave to start her own business soon and it will no longer be an issue.

 

[LostForWords]

I'll have to look at the contract again. Its a while since I've looked at it.

 

[avecSys]

Personally, I would re-issue the first warning, outlining the key points of behaviour and so forth. Then you put a 6 month correction in place that states if she breaches said warning in those 6 months that it goes to a written warning, followed by a final warning. Just make sure you hold these meetings with someone to take notes on your behalf and give her the option of having someone present. At the end of the meeting you present the notes that detail your discussion and get these signed by all parties present at the end of the meeting. You can then re-issue these notes along with the warning in a letter.

Basically start the process again with this recent incident and follow the correct procedure. Say nothing more about the subject and let her confusion dig her own grave. She will get the feeling on invincibility and no doubt will slip up again and within 1-2months you will have the grounds to wave goodbye without any repercussions

 

[Employment Law Clinic]

As I understand it an employee can't bring a case for unlawful dismissal to a tribunal unless they have worked for a company for 2 years. Is this 2 consecutive years or can it be 2 years total even if they have left your employment.

It’s continuous service – section 108 of the Employment Rights Act 1996 (Qualifying Period of Employment) (at the time of posting, the link is to a page that is not current – in it’s original form, the ERA said two years; this was later amended to one year, but more recently went back to two years). The previous employment wouldn’t count, and the start date should be recorded in the Statement of Particulars… if one was issued.

Unfortunately, if these disciplinary procedures have not been followed, then I guess the advising family member is right. You have no evidence saying the employee understands they have received their two previous warnings (no signature) and no witness to state otherwise. All notes from the procedure, plus a letter of disciplinary needs to be signed by all parties present to make this an official document, otherwise, these are just notes in a folder with no significance.

Sorry, but this is not correct. It’s not the case that you need any of this to be witnessed, and the warnings will stand.



If she hasn’t been there for two years, just sack with notice (one week unless a written contract provides for more) – it’s clear that she’s a rebellious employee, and is not worth keeping on board while she arranges her own business (is she trying to poach clients as well as staff?).


Karl Limpert

 

[avecSys]

My experience is on the back of calling said people like yourself and being advised to do as instructed. It was my understanding that having this witnessed was extra security for yourself, rather than employee, incase employees (like said employee) refused they had ever received a disciplinary.... No?

 

[Newchodge]

The fact that she doesn't have 2 years' continuous service trumps everything else in these circumstances.

The OP states that she was given a final written warning but doesn't mention a disciplinary hearing, an investigation, or the employee having the right to attend a hearing and offer her side of the case. If those things didn't happen you may have had a problem IF she had more than 2 years' continuous service.

Out of interest, why on earth did your wife take her back after she left? Presumably these problems have been evident throughout her working life with your wife.

 

[Vectis]

It's 2 years continuous service that counts.

If you want to (and I would), dismiss her - you don't need to give her a reason, even if asked, and it's sometimes better not to - and pay her what she's due in lieu of notice and any accrued holiday pay.