Employment Law question

[Finance Guy]

Hi,

I hope somebody can help me with this difficult situation please.

One of my employees, who has been with me for 8 months, has become a really negative influence in the office and is also quite unproductive, including making mistakes that are costing the company money (over 3k in one mistake alone). Other staff have also complained about his attitude towards them and his somewhat 'dictatorial' manner at times.

I do not wish to follow the routes of disciplinary proceedings, unless I have to. I would just prefer a 'nice' exit by having a frank conversation, paying him a months notice and letting him go straight away, giving him good opportunity to find something else and we would provide a positive reference for him.

He is fully aware of the issues and we have spoken about them many times, but nothing changes. He is not an unpleasant person and is, in many ways, a very nice guy at heart, but I can clearly see that him and my firm are not a match made in heaven sadly and I must bring it to an end, nicely (or as nice as this gets!) if possible.

So my question is, am I legally able to follow my proposed route? Am I ok just explaining why it isn't working out, pay his notice and let him go?

Many thanks for your help

[Buenchico]

Apart from certain special circumstances, which don't apply here, an employment tribunal can't consider a claim for unfair dismissal unless the employee has worked for the employer for a minimum period of 12 months. So (subject to any terms in the employee's contract relating to a period of notice), you can fire him without fear of repercussions

Chris.

[JJ1969]

This employee has a employment contract..I assume???

You must follow:
1. company policy: as stated within terms and conditions of their contract..

or.

The Employment Rights Act stipulates the statutory requirments for termination of contract.

PLEASE seek legal advice prior to any action. Failure to do so .. may result in costly litigation.

[silverdaler]

i have sent you a reply with your other post hun

[Stu Dent]

You CANNOT simply sack the guy if you want to stay within the law. However if you wish to step outside of the law the the most your employee can claim successfully from you is whatever period of notice he is entitled to - either by contract or by statute.

He may not be able to bring a claim of 'unfair dismissal', but if you ignore your obligations/his rights, he would have grounds to raise an action against you for 'wrongful dismissal' = breach of contract.

Under S.1 (4)(e) of the Employment Relations Act 1996, you are obliged to provide all of your employees with a written statement of the required period of notice - this period applies to both the employee and the employer. In addition, S.86 of this Act, provides the statutory minimum periods of notice required. For your employee this is one week - since he has been employed for more than one month, but less than two years. However, if you have provided a written statement of the amount of notice required (as you are legally obliged to do), and it is for one month, then you MUST observe that. You cannot give him just the one week's notice.

You can only sack someone on-the-spot (summary dismissal), if the employee commits an act of gross misconduct - such as dishonesty or violence or sexual harassment. In that case they'd be entitled to nothing.

So the good news (for you) is that you CAN fire this employee - for any reason - so long as you serve notice, and observe the appropriate period of notice.

I hope in light of this advice though, that you do indeed treat him well - better than he may be entitled to even, as you have indicated. If nothing else, your other employees will be more likely to show trust and loyalty to you (and work harder) if you show both toughness (by dismissing him), and some compassion (by giving him a bit more than he may in fact be entitled to). If you just fire him, how can you expect any loyalty from your

[cesdlv]

I agree strongly with Stu Dent's advice. Your man cannot claim Unfair Dismissal because of service. He will not be able to sue for Wrongful Dismissal if you pay him his notice (usually the equivalent of his payment interval). But he could still give plenty of grief with a claim that the reason for dismissal had a discrimination element to it (disability, sexual orientation, etc.).

But the most important aspect is SD's advice about the effect of termination on other staff. Be really clear about the man's faults, and also about his strengths. Be more generous than just paying for the notice period. Make him feel good and the rest of the team feel that you have acted firmly but reasonably and with some compassion.

And be careful with that reference! You can be sued for an unfairly generous one by his future employer, as well as by him for an unfairly mean one.

[Finance Guy]

Thankyou for all of your answers to date.

As I said in my question; whilst my, well founded, desire is to end my association with this staff member, I DO want to do it nicely. I have enough ammunition for disciplinary action but hope to save myself (and the staff member) lots of time and stress and just cut, amicably as possible, to the inevitable..

I am more than happy to pay him for his contractual notice period (1 Month) and give him a good reference. Again, I did say this in my original question.

I also fully agree that the reaction of the other staff will be heavily determined by how I treat this person. I enjoy very good relationships with my staff and this scenario is very rare in my firm, thankfully. If this is handled nicely, as I wish for it to be, there will be no fallout in my relationship with the others and will actually improve relations with many, due to the common feelings towards this persons negative influence in the office.

I did think that I would be ok letting somebody go within one year of employing them, but, like many Employers these days, I am finding HR to be an ever increasing minefield.

I assure everybody reading this, that the reason for wishing to end the employment relates only to performance / attitude and has nothing to do with discimination or unfairness in any form whatsoever.

I will call ACAS and follow their advice exactly. Many thanks again to you all for taking the time to respond

[auzzie]

Why would you want to give him a good reference? You are possibly passing the problems on to another company and i'm sure that they would not thank you for it. You are better off not giving him a reference or, if asked for one, just confirm he worked for you on such and such date and the department he worked in.

[Finance Guy]

Because I am not a vindictive person basically!

Just because it is not working out for this person at my firm, that does not mean he will be this way elsewhere - his frustration stems from failing within my firm to achieve the things he hoped to achieve. With a fresh job and a fresh challenge, backed up by a positive (but not false) reference, he will do fine im sure.

In asking for help with finding a nice solution, I dont see that withholding references etc will actually achieve that, but thanks for your input anyway!