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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38346
Experience:  Expert in UK Employment Law
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I employed a new staff member 2and a half months ago on a

Customer Question

I employed a new staff member 2and a half months ago on a 12 month contract with a 3 month probationary period. This is not working well. Can I terminate her employment with less than a month's notice? (contract says 1 month) or can I pay her in lieu?
Thanks
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know what the contract says exactly on this point.

Customer:

Hi

Customer:

Sorry for the delay in replying. I have made a basic mistake in sending the original email from an address which can be accessed by others. Can you send any replies XXXXX@XXXXXX.XXX rather than the original address?

Ben Jones :

Hello, unfortunately I have no access to your account and cannot make these changes, you would need to send your request XXXXX@XXXXXX.XXX

Ben Jones :

in the meantime do you want me to deal with your query on here?

Customer:

The contract says


11. Ending the employment


This employment is fixed term and will end on: 26th April 2014.


A 3 month probationary period applies. (to 26th July 2013)


If you want to leave this employment, you must give 1 months notice.


We must give you 1 months notice if we want to end this employment.

Customer:

OK

Customer:

Hi

Customer:

Not sure if you got this

Customer:

HI. Didi you get my contract clauses?


11. Ending the employment


This employment is fixed term and will end on: 26th April 2014.


A 3 month probationary period applies. (to 26th July 2013)


If you want to leave this employment, you must give 1 months notice.


We must give you 1 months notice if we want to end this employment. If necessary I will pay a month in lieu of notice. Do I have to do this or can I pay 2 weeks as she is within the probationary period?

Ben Jones :

you cannot give the employee less notice than what is in their contract because otherwise that would amount to wrongful dismissal, which is a type of breach of contract. So you really need to give her the month's notice. There is no clause that allows you to pay her in lieu of notice although it does not mean that you cannot do so. You may still pay her in lieu of notice although in that case the payments you make will be paid as damages for breach of contract and potentially will be exempt from tax and NI contributions. However, that is a tax issue rather than an employment law one

Customer:

Hello.

Customer:

It would be good to sort this tonight if at all possible. Any chance? I am fine to chat on here now.

Ben Jones :

answer is above have you not seen it?

Customer:

Hi. Would we be able to sort this tonight?

Ben Jones :

are you seeing my posts?

Customer:

Thanks

Customer:

I have seen your reply now thanks

Expert:  Ben Jones replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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Expert:  Ben Jones replied 1 year ago.
Not sure if you are having trouble seeing my posts but the answer to your query is above, please let me know if you need any further clarification
Ben Jones, Solicitor
Satisfied Customers: 38346
Experience: Expert in UK Employment Law
Ben Jones and 2 other UK Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
My pleasure. Please take a second to leave a positive rating for the service I have provided you with as that is an important part of our process. Thank you
Customer: replied 1 year ago.

For Ben Jones



Hi Ben


Thanks for the information about giving a month's notice yesterday. Our contract goes on to describe our company policy for dismissal. This involves several layers of disciplinary action before dismissal. As the employee is in their probationary period, do we still need to go through this process or can we just give the month's notice?


Extract below


 


12. Disciplinary procedure


 


It is company policy that the following procedure should be followed when an employee is being disciplined or dismissed. The procedure provides that in normal cases an employee will be given a series of warnings before discipline or dismissal is contemplated. The stages of the procedure that apply when a disciplinary penalty, eg demotion or dismissal, is applied.


 


Matters which may be dealt with under this disciplinary and dismissal procedure include discipline and dismissal for the following reasons:


 


i misconduct


 


i sub-standard performance


 


i harassment or victimisation


 


i misuse of company facilities including computer facilities (eg email and the Internet)


 


i poor timekeeping


 


i unauthorised absences


 


Minor cases of misconduct and most cases of poor performance may be dealt with by informal advice, coaching and counselling. An informal oral warning may be given, which does not count as part of the formal disciplinary procedure. No formal record of this type of warning will be kept.


 


If there is no improvement or the matter is serious enough, you will be invited to a disciplinary meeting at which the matter can be properly discussed. You will be allowed to bring a work colleague or trade union representative to the meeting. The outcome of the meeting will be communicated to you. There are the following possible outcomes.


 


 


.....etc


Basically we know this person will not work out in the job, so all this is pointless. Do we have to go through it all?


Thanks


 



Expert:  Ben Jones replied 1 year ago.
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Customer: replied 1 year ago.

Thanks for that. One final thing - she hasn't actually signed the contract yet, although I sent it to her as her employment started. Does this make a difference?


 

Expert:  Ben Jones replied 1 year ago.
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Customer: replied 1 year ago.

Thanks Ben. A great help.

Expert:  Ben Jones replied 1 year ago.
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