employment law

[penfold379]

i have a man who has worked for me for approx 5 years, he works 16 hours a week and claims tax credits, today we had a big argument and i sacked him, he has gone home with �80 of my money, what rights has he got with regard to holiday pay and being sacked without written notice, thanks.

[placey84]

hmmmm... was he on the payroll? if he was not through the books then i suppose its just your word against his.

But on the other hand he could maybe try an sue you for unfair dismisal if he was through the books.

[penfold379]

yes he was through the books, got a wage slip every week, what constitutes gross misconduct ?

[placey84]

Normally any kind of violence/Sexual harassment/Drugs/Stealing. Did he have any other Verbal or written warning?

[penfold379]

no warnings.

[placey84]

I'm afraid he might try an take you the cleaner as they say!!

[buildersmate]

You can only dismiss him without notice in cases of gross misconduct, which doesn't seem justified here.
If one dismisses someone with notice, it must be done fairly. It seems what you did might be seen as unfair within employment legislation. Also the notice period would appear to be 5 weeks unless something longer was agreed between you - plus he is due outstanding holiday pay.
He has every right to apply to an employment tribunal for the outstanding monies, and also to lodge a claim for unfair dismissal.
Whether he does so, is his call - you might be able to dissuade him by contacting him tomorrow to offer that you appreciate he is due some money, and work out what he is owed under contract. He might then not bother with the unfair dismissal element.

[uno.who]

Penfold ... I feel for you in the circumstances but, unfortunately, employment law does not allow for on the spot sackings any more. Your employee has the weight of law behind him.

As previous correspondents have suggested you really need to speak to your employee and work out a compromise in respect of the severance issues. �80 is not a great loss given that you gave no previous warnings, there was no opportunity for your employee to put his case formally, and that there was no notice given.

Try to resolve this amicably ... or you're on a hiding to nothing at a tribunal

[cassa333]

Why was he sacked? Was it just an argument about something silly like football or something or was it work related? and why did he take �80 home with him?

Sacking someone on the spot (I would think but don't know) is allowed IF you then pay them the legal notice period etc???? (someone will put me right I'm sure).

I know of someone going through something similar with redundancy at the moment and they are only going to get what they didn't but should have. If that makes sence !!

Draft a letter and post it to him today (Wed) with the terms of his dismissal informing him of how much his notice pay, back pay and holiday pay and benifits will be and when it will be paid.

Depending on why you sacked him, it may be galling to have to pay him but that I am afraid is the law....

[terambulan]

Theft - instant sacking & no rights! Hope you called police.

[penfold379]

thanks for all replys.

[uno.who]

Penfold - I'm very concerned at some of the nonsense answers that people are giving you about when "sacking on the spot" is justified (a la Alan Sugar!)

Basically, if an employee is with you for more than a year the only sackable issues are: Misconduct, Gross Misconduct, Capability (all searchable on internet). In each case the most you can do is suspend your employee until they have had a chance to state their case at a formal meeting with you. Sacking on the spot is not possible. Even if your employee is 100% in the wrong a Tribunal would find that you had not followed procedures and would find against you.

I know that seems somewhat unfair, but it's how the current laws operate.

[buildersmate]

Wrong again!
The only situations where a dismissal is fair (I do wish people wouldn't keep using the word 'sack' - that's what the The Sun uses) are for Conduct, Capability, Retirement, a Statutory Reason, Redundancy and Some Other Substantive Reason.
Gross Misconduct is a special case when the employee has fundamentally breached the contract in such a way that the employer is justified in dismissing the employee instantaneously without notice.

[uno.who]

OK BM .... your definition is definitely more succinct although I was trying to keep it simple, mainly to point out that a "big argument" is unlikely to be considered by a tribunal as a proper outcome or basis for instant dismissal.

Employees of all employers, regardless of size, are entitled to the benefit of a minimum standard formal disciplinary procedure before they are dismissed. Save in inappropriate cases (such as where a business suddenly ceases to function for unforeseen reasons or from 1st October 2006 if the reason for a dismissal is retirement - see Age discrimination/2006 regulations/retirement ) or where an employee has worked for the employer for less than a year (see Qualifying periods of service for rights/unfair dismissal/normal cases ) any dismissal is automatically unfair dismissal if the employer dismisses an employee without going through the required disciplinary procedure (Employment Rights Act 1996 s.98A introduced by Emp'tAct 2002 s.34);

[uno.who]

.... and for the benefit of Penfold, this particular site will give you a blow by blow account of what you should have done / should still do:

http://www.tollers.co.uk/legal-briefings/brief ing-37---Gross-misconduct.htm

[buildersmate]

Fair dinkum. I can see you know what you are talking about. Unlike rather too many people on here who like to stab at the employment questions.