Sacking employee?

[janearmstrong1987]

We have had a guy working for us for just over a week now. He is Polish and stupidly, we didn't give him an interview but just took it on.

It only came to light when he started working for us just how bad his English is. He struggles to follow instructions and I have to gesture what I am talking about. We have customers visiting and couriers trying to obtain information (he may be left onsite alone if we are both busy) and we think he doesn't give off a great impression. Both directors have decided to let him go..so here are my questions:

1) Can I fire someone for bad English? Is this against his human rights or something?
2) Do i need to give him notice?
3) I am due to pay him for the first time this Friday..do I need to give him a new p45 after paying him for just one week?

He has not signed a contract yet so I don't think this can ever come back on me but I am not sure..any help would be great.

Thanks

 

[Newchodge]

You can dismiss him because he is not up to the job, in particular because you cannot leave him alone to deal with clients.

You do not have to give him any notice until he has been working for you for 4 weeks, unless you have offered him a contract with longer notice. He does not have to have signed any contract you may have offered him.

You need to give him a P45.

You CANNOT sack him for being Polish.

 

[janearmstrong1987]

Thank you Cyndy! I wasn't suggesting sacking him because he is Polish. I tend to think they are very fast, reliable workers but in this instance, this one does not speak enough English and it makes any communication very difficult and frustrating. Thank you for your quick reply.

 

[carl.atkinson]

I think that I would go a bit further and say that you cannot sack him because he is a non-native English speaker. I think that you could argue that it was a reasonably implied term of the employment agreement that he would be able to communicate in English to a reasonable standard (particularly if he is in a customer/supplier facing role).

 

[Chris Ashdown]

You do not have to give a reason for letting him go

 

[HRinMinutes]

I agree with Chris. It's very hard to backtrack on a discrimination case, say the least you need to and dismiss on the failure to follow instructions and do the job required. To avoid you wasting your time in the next hire just raise some simple tests to be done at interview stage. Speed is not your friend when hiring, you always end up needing more time when it goes wrong.

 

[HFE Signs]

Simply say 'unfortunately your probationary period has been unsuccessful' and wish him all the best. He will be expecting it anyway I'd expect. Good luck, not an easy thing to do..

 

[Newchodge]

problem is, if he tries to claim benefits, they will ask the employer the reason for dismissal - if it was his own fault he won't get any benefits. So it is best to know in your mind what the reason was - in this case -was unable to do the job in dealing with clients.

 

[tony84]

Im just curious with all the people who moan about how difficult it is to get a job, how someone who cant speak english particularly well managed to get a job?

Im just picturing someone coming in say job? and you saying sure, you start on monday.

Fawlty towers style.

Sorry to laugh at your misfortune but its brought a smile to my day.

 

[hcscheshire]

You can sack anyone within their 1st year of their contract without reason

 

[Newchodge]

You can sack anyone within their 1st year of their contract without reason

I suggest you understand basic employment law before giving advice which is wrong

 

[nelioneil]

You can sack anyone within their 1st year of their contract without reason

Actually it's 2 years. As long as it is not for any of the protected characteristics (e.g. age, race etc...) Then an employee with under 2 years service cannot make a claim for unfair dismissal.

 

[Vectis]

Dismiss him, you don't have to give a reason as he's not worked with you for 2 years yet. So long as the speech problem is not a speech disability, you're ok.

 

[carl.atkinson]

I am sorry to say that there is some ill considered advice being offered here.

It is unwise to sack someone without any reason because in any subsequent discrimination litigation the Tribunal can assume that an absence of an explanation is indicative of discrimination. If that happened you would then have to prove that there was no discrimination or you would lose - this can be difficult and expensive.

You would be far better off in my experience to explain the reason for dismissal (assuming that it is non-discriminatory).

The failure to complete a probationary period could be a good option if it is correct (and ideally documented).

 

[hcscheshire]

Carl I agree but its quite clear there is no discrimination happening and because the person hasn't been their for 2 years it wouldn't even get to court

 

[Newchodge]

Carl I agree but its quite clear there is no discrimination happening and because the person hasn't been their for 2 years it wouldn't even get to court

You're doing it again: offering ill-advised and wrong information on a topic on which you have no knowledge or understanding.

please justify your comment: 'clear there is no discrimination happening' How can you know this, based on the thread so far?

 

[carl.atkinson]

Carl I agree but its quite clear there is no discrimination happening and because the person hasn't been their for 2 years it wouldn't even get to court

Your point about the 2 year qualification is also irrelevant given that the potential claim is based upon discrimination which has no qualifying period.

 

[hcscheshire]

Again you are assuming I have no knowledge. Friend of mine who was Asian was sacked without reason in 2013. He was constantly bullied by staff and racially abused. it didn't even get to court because he hadn't worked for the company for two years. He had evidence of the abuse and witnesses but the judge would not see it into court. This happens so often.

With this guy he hasn't even signed a contract so there is no agreement in place.

This actually does sound like a discrimination case one because there is a language barrier which creates the other problems i.e cant follow instructions. But there is no contract in place so it wont get to court.

 

[hcscheshire]

Your point about the 2 year qualification is also irrelevant given that the potential claim is based upon discrimination which has no qualifying period.

there is no contract in place it wont go to court.

 

[carl.atkinson]

there is no contract in place it wont go to court.

"contract" also irrelevant for discrimination.

 

[hcscheshire]

I totally agree but im speaking from personal experience with 2 different friends it didn't even get to court because the companies worded it in a certain way. How would the guy prove it was discrimination.

But again I will say this is a discrimination case im just saying it wont even get to court. most people cant afford to take it to court and then its proving it in court.

 

[Newchodge]

A contract exists because he is employed. A contract does not have to be in writing, if there is a written contract it does not have to be signed.

Discrimination claims do not require any length of employment.

Do not pontificate about the law if you do not understand it.

 

[hcscheshire]

well that told me off. Im glad I have no past experiences in dealing with the same issue. oh no wait I do.

AGAIN I will repeat myself. THIS IS........ a discrimination case because what the guy has wrote about the language barrier and so on.

But is there really any proof of this? No

I have been through it with two friends who had witnesses to prove they were discriminated against and it didn't even get to court. The employer just said they didn't release them for any reason.

rules and regulations have been brought in which help the employer more.

I guarantee if he told the guy tomorrow that he was releasing him from his duties it would not make it to court.

It doesn't make it right and I think it is disgraceful that this stuff happens but hey that's what governments have brought in.

 

[Newchodge]

I bow to your experience of a couple of friends whose cases didn't get to court.

My experience of more than 20 years dealing with real cases in the employment tribunal is of no significance compared with your mates, whose cases never made it to court.

 

[hcscheshire]

I think you really have a bit of an issue hodge. This is called a forum which is full of peoples experiences and opinions if you don't like mine im really not bothered. Regardless of if you have 20 years or not what it doesn't mean to say you are right or wrong.

My opinion is different to yours.


and again!!! AGAIN hodge. THIS IS A DISCRIMINATION CASE. hope you got that

 

[Newchodge]

I think you really have a bit of an issue hodge. This is called a forum which is full of peoples experiences and opinions if you don't like mine im really not bothered. Regardless of if you have 20 years or not what it doesn't mean to say you are right or wrong.

My opinion is different to yours.


and again!!! AGAIN hodge. THIS IS A DISCRIMINATION CASE. hope you got that

This is not a discrimination case. This is a case of a member of the forum asking advice about dealing with an employment issue. Please try hard not to lose the plot.

 

[hcscheshire]

" 1) Can I fire someone for bad English? Is this against his human rights or something? "

Discrimination or not?

 

[Newchodge]

If an employee is in a role which requires them to communicate well in spoken english, and the employee cannot do that, yes you can fire someone for bad english. Even if you could not do so it would not be a breach of human rights, but a breach of the equalities act.

Not discrimination, no.

 

[hcscheshire]

well i'm glad we know that there is no discrimination what so ever.

 

[Karimbo]

Communication is a key component for the job, English is the language of the land. It is NOT discrimination to to sack him because his level of English is poor.

make sure you document examples of cases where his poor English has led to substantial disruption in your trade. You need to have it archived somewhere just in case. 99% sure you wont need to use it. But just pointing it out because you seem to be skipping basic formalities (e.g. hiring people without interviews).

 

[Karimbo]

I totally agree but im speaking from personal experience with 2 different friends it didn't even get to court because the companies worded it in a certain way. How would the guy prove it was discrimination.

But again I will say this is a discrimination case im just saying it wont even get to court. most people cant afford to take it to court and then its proving it in court.

Yeah a lot of stuff cannot be proven in statements because a lot of workplace bullying is passive aggressive and implied.

e.g. whole team might want you off the company and start being passive aggressive, singling you out and constantly pointing out flaws in your work (which they could defend as constructive criticism), or isolating by not inviting you for lunch when everyone else goes to lunch together (which they could defend as it's up to individuals to decide who they spend time with in their "free time").

This sort of stuff constantly can be a strain on you emotionally which would have a downward spiral on your performance. It is IMPOSSIBLE from an independent adjudicator to make a decision based on these two opposing sides.

 

[Karimbo]

well i'm glad we know that there is no discrimination what so ever.

again, it's not discrimination because Employee needs to speak fluent English to carry out their work. Employee cannot carry out their work because of their INABILITY to speak fluent English. It's like trying to claim a plumber is discriminated against because he was sacked for leaving too many houses with slow leaks which flooded houses. It is not discrimination - it is sacking due to incompetence.

But to OP. Keep a record, people can become very good English speakers in a little as 6 months if they try hard and use every moment to practice their English. To conver your back, document as many cases as you can where his poor English has impaired your business - write entire transcripts of conversation if you can.

Save any written communications in the form of emails as well.

 

[hcscheshire]

Great information Karimbo.