Network Members Login
Banner Image
Share |

Termination of Employment

A member of staff has just walked out on me. He left last night after I pulled him up about something and said he would not be back. He hasn't turned up for work today but sent me a text stating that he wanted his accrued holiday to be paid. I have worked out that he would have been entitled to 6 days holiday up to today and he took three days off last week. Since he hasn't fulfilled his contractual obligation to give notice, am I obliged to give him his holidays?

I am afraid you are! If you don't pay him his accrued holiday then it would be classed as unlawful deduction of wages.  The thing about notice is that you are legally obliged to give or to pay notice to staff but if they do not provide you with adequate notice, you cannot do anything in terms of redress.  So you need to pay him his three days' holiday along with his salary up to the time he left yesterday.


We have had a couple of employees leave our employment recently, they are normally paid one week in arrears but I am receiving conflicting information as to when they should be paid their final wage. Should a special payment be processed on the day they are leaving or can I process in line with the normal payroll payments?

Providing there is no written agreement stating that when an employee leaves your employment that they would receive all monies due to them on their last working day then you are quite right to process in the normal way.  Providing all monies due are paid at the correct time i.e. the week following the employee’s leave date in your case then you are in no way breaching the contract.  Don’t forget to send out the employee’s P45 at same time as their last wage slip!


An employee who had worked with us for several years resigned in November 2007 because a car crash injury prevented him from carrying out his job, which was physically demanding. However, in October 2007 he applied for a clerical job with us. Unfortunately he has not really got to grips with his new role. As he now has only three months' service with us, can I dismiss him simply by giving him a week's notice?

Unfortunately you cannot.  The law effectively provides that if an employee resigns (or is dismissed) for a reason connected with his sickness or injury and is then taken on again by the same employer, his continuity of service is protected – provided that the gap between leaving and being re-engaged does not exceed 26 weeks.  In this case the gap is only about 16 weeks. 

Consequently, this employee's statutory continuous service with you is probably longer than you think. The initial period of service, the gap of about 16 weeks and his current period of employment would all count and be added together for the purpose of employment rights that require a qualifying period of service.  This would include rights of statutory minimum notice of termination, the right to claim unfair dismissal, and so on.  An employee's service during any period is presumed to be continuous unless the contrary is shown. Consequently, it would be advisable to treat him as if he had not resigned at all in July. 

You will probably have to deal with this man by going through a proper capability process involving monitoring, support and warnings, as you would for any other employee who has more than a year's service.  There is also the potential matter of disability. Clearly the injury was sufficient to prevent this worker from carrying out his previous duties. Disability is unlikely to be an issue in his current clerical job but it would be prudent for you to be careful in this regard.


One of our lorry drivers already has 10 points on his driving licence. He was recently caught speeding (in his own car) and has now received a Court Summons. As he is likely to receive at least three points for the speeding offence, under the totting-up provisions I believe he will automatically be disqualified from driving for at least six months. If he is banned from driving, can we dismiss him? He has been employed for about three years.

If your employee is employed as a driver and loses his driving licence, this does, of course, mean that he cannot continue to work as a driver for the duration of the ban. However, it does not necessarily follow that you can simply dismiss him because he can no longer carry out his job duties. While it is a potentially fair reason to dismiss someone in circumstances where they cannot continue to work in their position without contravening the law, you have to act reasonably in both the dismissal procedure you adopt and in treating it as a sufficient reason for dismissal.

Your starting point is to consider in detail whether you are able to find the employee alternative non-driving work on a temporary basis for the duration of the ban, for example an office-based role. This will necessitate consulting with the employee to discuss the options available, even if they involve lesser or different hours of work or a reduced salary. However, if there is no alternative work available at all, after consultation you should be able to dismiss the employee. Dismissal should always be the last resort after you have considered all other options.


We have an employee who was a TUPE transfer into our organisation in 2005, but was employed by the previous company since 2000. It states on the contract of employment which was issued in 2005, that the employee will be given a months notice by the employer, and the employee is required to also give a months notice. Is this correct?

Notice required to be given by employer would be 8 weeks – one week for every year of service (up to a maximum of 12 weeks).  The statutory notice takes precedence over any lower contractual notice.  Therefore if your employee has a total of 8 years service they are required to be given 8 weeks notice.

 

However the notice required to be given by employee - would be one months’ notice as per the terms of the employee’s contract of employment. 


I have an employee who has worked for me for over 15 years and is now an accounts manager. Recently we have noticed financial irregularities on a

If you suspect that a member of staff is defrauding the company you should suspend him while you carry out an investigation.  Suspension is on full pay and is NOT disciplinary action. If you do not suspend, you could lose the option to dismiss if your investigation  concludes that there was fraud. The length of service of your employee has no bearing on the process you use. You will only take this into account in deciding what level of action to take when the investigation is complete. Follow the statutory disciplinary procedure as well as any requirements in your contracts of employment. Remember that at this stage everything is only a possibility and there may well be an explanation other than fraud, including that there is actually nothing wrong. Listen to what your employee has to say and then investigate the explanations he gives. It may be that this is an issue of incorrect recording or someone promoted beyond his
ability. In that case you could consider training or demotion if this is written into your disciplinary policy. However, if after your thorough investigation and disciplinary hearing you feel this is a conduct matter and you believe that the employee is responsible, you have to choose the correct sanction. If you decide this is gross misconduct, the result will be summary dismissal. Otherwise you will have to consider an appropriate warning. Give your decision in writing, setting out your reasons, and include the right of appeal