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Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
Satisfied Customers: 48162
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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We have an employee who started working on 04/04/2014. He was a great employee

Customer Question

Hi. We have an employee who started working for us on 04/04/2014. He was a great employee and then started to falter these last 3 months. He did not show up for work 2 times. Then on Saturday, he showed up for work, said he had agreed with another employee to swap the morning shift. He disappeared and did not show up for the afternoon/evening shift. I then asked him to come in on Monday (he does not work on Mondays) and he responded very aggressively and asked for his p45. On Tuesday, he called us and wanted to work again and accused us of unfairly sacking him. He resigned in the first place. What should we do?
Submitted: 2 years ago.
Category: UK Law
Customer: replied 2 years ago.
Also, it is fair to say that we would have sacked him as we felt 3 times not showing up was too much. At the same time, we did not record most of the above, so we are afraid that the law is on his side as nothing was written only spoken as he is from Algeria and is illiterate in English.
Customer: replied 2 years ago.
We do have records of when he did not show up as we have an electronic check-in system our employees use and can compare this to his work schedule. Also, it would not be a problem to get employee statements of these three absences.
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Did he get any notice on dismissal?
Customer: replied 2 years ago.
No, we have not issued a formal notice nor dismissal as of yet.
Customer: replied 2 years ago.
Expert:  Ben Jones replied 2 years ago.
Sometimes an employee may resign in the heat of the moment, for example after an argument with a manager or colleague. It could be an official resignation, or an act that implies resignation, such as clearing their desk, saying they will never return, etc. In such situations they might not really have meant to resign but did so on impulse. Therefore, the employer should not automatically assume that the employee has resigned and should allow a short cooling off period for them to change their mind if necessary.
The leading cases are those of Kwik-Fit Ltd v Lineham and Ali v Birmingham City Council. It was decided that an appropriate period for the employee to change his mind was "likely to be a day or two". That is on the assumption that the employee had not already been given the opportunity to reflect on their apparent resignation and retract it.
Therefore, in circumstances where an apparent resignation has occurred in the heat of the moment, the employer would be expected to give the employee a couple of days before treating their actions as a formal resignation. That time should be used by the employer to contact the employee in order to clarify their position.
However, his rights are rather limited in the circumstances and even if you did not allow a cooling off period or check his intentions, you can still proceed with the apparent resignation and even dismiss him if you wanted to.
That is because if he has been continuously employed at his place of work for less than 2 years then his employment rights will be somewhat limited. Most importantly, he will not be protected against unfair dismissal. This means that his employer can dismiss him for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because he was trying to assert any of his statutory rights (e.g. requesting paternity leave, etc.).
If the dismissal had nothing to do with any of the above exceptions then he would not be able to challenge it and his only protection would be if he was not paid his contractual notice period, because unless he was dismissed for gross misconduct, he would be entitled to receive his contractual notice period. If he did not have a written contract in place he would be entitled to the minimum statutory notice period of 1 week. His employer would either have to allow him to work that notice period and pay him as normal, or they will have to pay him in lieu of notice.
So as long as you give him the notice period he is due you can dismiss him if you no longer wanted him there and he cannot claim unfair dismissal.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.
Ok, so if I would now issue him with a dismissal notice, I would not need to give him a valid reason, and I would simply need to pay him his notice period which is 1 week in his contract. Is this correct? Also, would the fact that he did not show up at work on 04/05/15, 30/05/15, and 06/04/15 be valid for gross misconduct?
Expert:  Ben Jones replied 2 years ago.
you do not need to give a reason you can simply issue him with notice of dismissal. The dates of absence, if no valid reason was provided for them, can amount to gross misconduct and you could potentially try and dismiss with no notice but if you want to be on the safe side then you can just give him notice and then you know you are covered and he has no comeback
Hope this clarifies things for you?
Customer: replied 2 years ago.
Hi Ben - Many thanks for your answer. I had another question relating to the above - What steps would I have to take in order to dismiss him for Gross Misconduct? Items for this would be:
1.) Did not show up for work - 3 times
2.) Was late 12 times - more than 5 minutes
3.) We have found that he lied on the CV he supplied us withDo please let me know what the procedure would be so that a court of law would recognise the dismissal for Gross Misconduct.Many thanks for your help.Nicolas
Expert:  Ben Jones replied 2 years ago.
Gross misconduct means an offence serious enough to justify the instant dismissal of an employee. There is no legal definition of what gross misconduct is and it may vary according to the particular circumstances of the employer and the work the employee is carrying out. But in general theft, dishonesty, violence, unlawful absence from work, etc can all qualify. So the procedure is not any different than what I already advised, you just have to make it clear why you are dismissing him and state the reasons that you believe amount to gross misconduct – in this case it would be the absence and the lies on the CV, not the lateness as that won’t be serious enough.
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Customer: replied 2 years ago.
Ok - and I would carry out the dismissal by simply putting together a letter and sending it to him?
Expert:  Ben Jones replied 2 years ago.
If you were giving notice then you could just send a letter. As you are trying to dismiss for gross misconduct you can still just do that but you may want to consider holding a brief disciplinary hearing to allow him to defend himself in case he has a reasonable excuse for the allegations. It is not legally required you do this but may be advisable in case he can defend the reasons you want to use to dismiss instantly
Customer: replied 2 years ago.
Ok, and is there a way in which I should document the meeting I have with him? I have already had two meetings but they did not lead to an agreement. So he is aware of the reasons of his dismissal but we do not agree on them, otherwise, he would have left without an issue. Should I call him back in with the presence of a solicitor - is that completely necessary?
Expert:  Ben Jones replied 2 years ago.
no you have no obligation to invite a solicitor - you have the right to refuse that and he can only take a colleague or trade union rep with him and only if he wants to. You just document the meeting with minutes, it does not matter if you agree or not as long as you document what was actually said. If you dismiss him on gross misconduct and he disagrees then it is up to him to challenge that but I doubt he will for what is at stake as the fees would be quite high. Even if he does and you lose all you would have to pay him is the notice period so not really a huge risk
Customer: replied 2 years ago.
Does his dismissal note need to include proof - for example staff statements validating the points?
Expert:  Ben Jones replied 2 years ago.
Not it does not
Customer: replied 2 years ago.
Hi Ben - I have now sent through a dismissal note to the employee via email and to his physical address. I wanted to know what next steps would be? He had mentioned he would file a complaint in court. Would he be able to do this regardless of my dismissal note? Would I then be forced to defend myself. From what I understand, for an employee to file a complaint is very easy and cost free but for an employer it is not as easy and I would need to get a solicitor for this which would rack up expenses. What are your thoughts on the above? What can an employee do via the courts in this case if they believe they were wrongly dismissed - from what you mentioned earlier, there is not really a reason for him to challenge me on this as I do not need a reason to dismiss him.
Expert:  Ben Jones replied 2 years ago.
Hello I am happy to assist further but please take a second to leave your rating for the help so far as otherwise it would be uneconomical for me to continue providing any assistance . Thank you