UK Employment Law
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Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Please note that as a practising solicitor I am often in and out of meetings, travelling, or even at court when I pick your question up. This may even occur at evenings and weekends. Therefore, I apologise in advance if there is a slight delay in getting back to you. Rest assured that I am dealing with your query and will respond ASAP. You do not have to wait here and you will receive an email as soon as I have responded. For now please let me know how long she has worked there?
She's been with us since March 2011.
Many thanks for your patience. Has she actually refused to turn up for her contracted hours on Fridays?
Well she has arranged for another member of staff to cover for her. I don't think she's actually worked a full Friday since July. We allow staff to take time off if they can arrange cover, but we thought it was understood that it was for exceptional circumstances, not every week.
So if she arranges for someone to cover for her and this person does so and turns up for these hours and does the work, is your business affected in any way?
No. However, we are dependent week to week on the goodwill of one other employee to provide the cover. It is not a sustainable long-term solution.
You need to be very careful about treating her actions as a resignation, because that is unlikely to be the case. Whilst she may not be performing the contractual hours expected of her, it does not mean that by doing so she is resigning. She would be acting in breach of contract and that could be seen as a disciplinary matter, allowing you to take disciplinary action against her, which could eventually result in dismissal, but it would not automatically amount to a resignation.
Also, you need to take into account the cover she has arranged. If the person covering is happy to provide this cover and this is not affecting your business in any way, then taking formal action could be deemed unfair because you are not in any way being affected by this and everything continues to runs smoothly. I know you may be worried about the reliability of the cover, but if there are no reliability issues to cause concern, unless this becomes an issue in the future, at present it would not be one.
OK. So effectively as long as the cover is available, we have no way of forcing her to work her conrtacted hours?
Unless you have no policy on this and it affects your business in some way, but if it makes no difference to you and does not affect the business, then tasking formal disciplinary action, including dismissal, could be seen as unreasonably harsh in the circumstances when all she is trying to do is ensure she has appropriate childcare
Ok thanks. I just wish her appropriate childcare wasn't at the expense of our business continuity.
Yes I understand but I also gather that you have not actually had issues with this arrangement so it is probably best to keep a close eye on how things go and if it eventually becomes obvious that it has an adverse effect on the business you can revisit this and discuss her options again
Thanks for your help
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