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FAQ Item

A member of staff with a record for poor time-keeping has recently been absent with “flu like” symptoms. However, it has been brought to my attention that his Facebook profile described him as hung over on the day he rang in sick. The employee is still in his probation period and has been with me for only three months. What action can I take against him?

Someone who has been employed for less than a year cannot normally make a tribunal claim for unfair dismissal but he or she can potentially make a claim for breach of contract. It is common for employers to write into their terms that short serving employees – those with less than a year's service – will not be entitled to the full disciplinary procedure but are entitled to a hearing and an appeal.
Issue a letter that requires him to attend a disciplinary hearing. The letter should set out his right to be accompanied, to state his case and the right to appeal. Set out the details of your concerns.

You might wish to download a copy of his Facebook entry and attach that to the letter, along with full details of absences and the times when he was late. Make clear in the letter that you regard these as serious matters and that if he doesn't have a satisfactory explanation it would be your intention to terminate his employment. During the hearing make sure you have a competent note taker. Explain your concerns to the employee and listen to what he has to say. Once he has provided his explanations, challenge any areas of concern. From his attitude, try to determine whether he is likely to repeat this misbehaviour. If his explanations are unsatisfactory and you feel that his poor behaviour will continue, then you may well decide to dismiss him.

Confirm the dismissal in writing and repeat his right to appeal. If an appeal is made, ensure that it is conducted properly by somebody not involved in the original disciplinary action.