Part-time job rights?

[Mattk]

My son works/worked part-time at a local restaurant. He was the only person working in the kitchen during peak lunch-time and under pressure swore at a waitress. He was then told to go home and not to come in until next Friday to collect his wages.

It is not clear whether he has been fired or not but I was wondering what his rights are as if he has been fired it seems very harsh.

Can you someone clarify his legal rights for me, please?

Thanks in advance.

[jedimistress]

How long has he worked there and does he have an employment contract?

Has he tried appealing and apologising and explaining to his employers he was under stress?

The incident could be construed as gross misconduct.

[nurseryt-31]

I am no expert, in fact I only joined this site today but have found other people's opinions and answers very welcome and useful, so hopefully someone with a bit more knowledge on the matter may answer you soon - but as far as I am aware it will depend on a) What exactly your son said to the waitress, as if it was threatening then it may be seen as gross misconduct and b) how long he has been in the job, I think that part-time employees have more rights after a year, as far as unfair dismissal goes. Also worth considering though is whether the company were breaching health and safety rules by allowing him to work alone in the kitchen?
As I said, hopefully somebody with more knowledge on the subject will see your question soon and answer it x

[nurseryt-31]

Just wanted to add that I am a slow typer, and hadn't seen your answer jedimistress - good advice

[Mattk]

hes been there a couple of months. it is not clear that he has been sacked as they told him to go home and come back friday for his wages but i want to get some legal facts before he goes back in.
i have told him to ring them tomorrow when everyone has calmed down and explain his situation. it seems very harsh to me that you can get sacked for swearing at another member of staff of equal status.

[nurseryt-31]

I kind of started typing then got distracted, iyswim!

[Ethel]

Gross misconduct is grounds for instant dismissal.

"gross misconduct: are acts which are so serious as to justify possible dismissal, such as theft or fraud; physical violence or bullying; deliberately accessing internet sites containing pornographic, offensive or obscene material; serious insubordination; serious incapability at work brought on by alcohol or illegal drugs; a serious breach of health and safety rules; or a serious breach of confidence"

It is impossible to say whether your son is guilty of gross misconduct - there is swearing which can be shrugged off, and there is swearing which is tantamount to bullying or threatening behaviour.

What exactly did he say, and was he intimidating when he said it?

[Mattk]

he used the f word but not to tell her to f off. he was being hassled for something and he was stressed as he was on his own so the line went something like you'll get them when they're f'ing done.

as i say very harsh

[thugulike]

Your son does not have 12 months service and can be dismissed for any reason without a hearing. Have a look at the ACAS site but you may need to drill very deep before you find that information. CAB will also give advice free.

[buildersmate]

True, but he's still entitled to a notice period if he has been dismissed. That is one of the differences between dismissal for (whatever reason the employer decided) and dismissal for gross misconduct (where the employee has fundamentally breached the contract - as per Ethel above).
Unless he's a casual worker, when he's employed on an hour by hour basis. That's what we are trying to sort out here.
If he's being paid weekly, gets a pay slip with his NI number on it (even though I realise he probably doesn't earn enough for there to be any deductions), has been there 2 months and is working those hours regularly, I reckon he should argue that he was on a week's notice.
If, however, the employer tells him which hours he will work and it varies, he probably can't argue legally for any more pay than the shift when he was sent home.

[buildersmate]

The place to get remedy, by the way, if the employer won't play ball and he wants to pursue it would have to be via the Small Claims process in the County Court as a civil action - he can't use an Employment Tribunal.

[Mattk]

many thanks guys. much appreciated.