Q: I employed a book keeper in May 2006 and I now feel that she is not up to the standard required to do the job satisfactorily. I have had informal discussions with her about her performance, but have not done anything officially or in writing. I would like to dismiss her with pay in lieu of notice. Is there a procedure I need to follow to ensure that there is no legal action she can take for unfair dismissal?
Dec 01 2006
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Answered by: Peter Done Ask a question
It is a common misconception that employees with short service i.e. under one year can be dismissed with impunity. Protection against improper treatment starts before employment even commences – adverts cannot be discriminatory for example. From day one of employment employees gain many more rights, in addition to those before employment – at least 85 before they have reached a year’s service. And they acquire further rights at a year, the chief one being the right to claim unfair dismissal and a further right to a redundancy payment after two years’ service. The starting point with this lady is therefore what is in her contract of employment – because if you breach the contract she needs no length of service to bring a claim to Tribunal. Of particular importance are your terms re: conduct, capability and a right, or not, to pay in lieu of notice. Sometimes the rules for short serving staff are such that they are not entitled to the full disciplinary/capability procedure(s) but are subject to modified ones. If they are not modified in any way you will need to follow the full procedures to ensure you do not commit a breach of her contract. It is very easy in such situations to lose site of the fact that disciplinary/capability procedures are designed to be corrective in nature. Your question does not totally make it clear if she can’t do the job or won’t do it. I would suggest you invite her to a formal meeting, confirm by letter, telling her of her right to be accompanied; her right to state her case and to appeal if a decision is taken with which she disagrees. Set out in detail your concerns and attach any necessary example documents. Give her a day or so to prepare her response(s) – longer if she requests it. At the hearing repeat her rights and have a competent note taker to take down her responses to the points you put to her. Do not interrupt her, but challenge any points afterwards if necessary. Adjourn the meeting to consider your decision. Your decision should be arrived at taking into consideration your contractual terms; the validity (or not) of the explanations given; her manner (i.e. was it “couldn’t care less” or “a determination to succeed in the future”); the seriousness of her errors; the possibility of improvement etc. You should also consider that her recruitment and training has cost you money – would it be sensible to persevere a little longer if there is a prospect of improvement to the necessary standard? In essence what is the “fair” decision? As you have only had informal discussions with her I believe you would need to have at least one formal meeting with her, with, if appropriate a formal warning, before you could dismiss fairly if she did not then perform to the required standard. Finally if you do not have a contractual right to pay in lieu of notice if you did so (whenever that might be) you would be in breach of contract and therefore any contractual clauses re confidentiality or restrictive covenants, would almost certainly become unenforceable.
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