employment law anyone got any advice?

[jonnyboy]

Whilst I do heed the often used comments like "its only some bloke on t'internet", I would love some points of view. We are a small company under 5 employees.

I have to organise my second sacking. The forst was a long time ago, dead straightforward. This time its my top man, who I havent seen since I got back from abroad. Got a text first day back after the start of work "not well". Got a text next morning b4 start "dad not well we are calling doctor" came from his phone. That was last week, nothing since. I didnt manage to stop his pay in time for last week (I suspect he knew the timescales involved).
Have since heard that whilst I was away there was one instance where he was 1 hr late, no apologies to staff, wouldnt take their calls wondering where he was etc. He has also taken a small (under £100) amount of cash out of the "unforseen running costs" money left while I was away, he didnt ask despite the fact we were in text contact during holiday, told another staff member "I'm borrowing that".

Back story is that I think he's a boozer, money problems, recent bereavements, single parent etc etc. I gently warned him I wasnt happy with his performance a cpl of months or so back, he agreed he'd been off the boil. Been on the books for 18 months, I've been good to him, sold him cars cheap, helped him with them etc, also loads of time off for said bereavements, lent him company vehicle etc etc.

I heard at the weekend he'd ben in touch with another staff member, so he was clearly up and about.

I just want rid now. Seems like he's right royally making a mug o f me yet reading ACAS and CAB websites it seems its all favouring him. The corker is that he owes me money, too.

Can I use the "borrowed" money as "theft" therefore gross misconduct?

Cheers

 

[LTD]

Take professional advice in this matter.

It will save you in the long run.

 

[davidjpowell]

Definately do not mess. Take expert advice. If you are a member of your local business chamber you may well get free advice.

 

[mapleleaf]

professional advice is best - actually, ACAS can be quite helpful to small employers. But a local Solicitor specialising in Employment law might be your best bet under the circumstances. Especially as he has been with you over one year.
If you have not properly documented his poor performance & other issues its difficult for you to just dismiss without going through a formal warnings process. the only exception being gross misconduct. the rules for grievance & discliplinary procedures recently changed and are less stringent than they used to be - again ACAS have a new code of conduct in this regard which may be of help.

If you dont follow procedure you could find the employee is automatically classed as being unfairly dismissed.

the taking of cash could well be a case for gross misconduct which is where your solicitor can help.

good luck - its frustrating I know - I've been there a few times over the past 20 years running my own businesss. we document everything now just in case - simple record keeping such as lateness, unauthorised absence, sickness, performance etc. that way you have evidence and can easily spot if a pattern is forming.

 

[PXW]

As others have said, you need good professional advice here. I would ask your lawyer to look carefully at the money thing -a loan is a contract, and a contract needs two parties. I don't think he can claim to have borrowed the £<100 if you didn't agree to it, unless there was a generally accepted practise that people could dip into it in times of dire need, which I doubt.

Other thoughts...has he been off for more than 7 days? Has he provided a doctor's note? His life seems to be falling apart, and whilst you cannot take repsonsibility for that, or even necessarily do anything about it, in my experience it is always presentationaly better to be seen to have taken care - so to ahve a record of attempts to call to see how he is, perhaps have written to express concern etc etc.

 

[jonnyboy]

Thanks so far. Am speaking to ACAS today, but was just wondering whether anyone had been involved in similar. Interestingly, had a text from him today, "dont know when I'll be in", and not related to illness either. Unbelievable, the audacity of some people.

 

[wemorgan]

Some sound advice here:
Jo Wells on how to fire someone | Money | The Guardian

 

[Nibbo]

It sounds to me like the guy is having a breakdown or something.
Don't forget that as an employer you have a 'duty of care' over your employees.
He may be having a breakdown due to work related stress!
I would, as has been suggested, take advise from an employment law specialist.
But I would also try to contact him to express your concerns.
As for the money; if he has taken it for his own purposes rather than for business use and has done so without consent (and of course if it not standard practise) then I would say that it could be considered theft and therefore gross misconduct.

Finally; follow your procedures and ACAS recommendations to the letter to avoid an automatic unfair dismissal.

 

[Benzowner]

As said, take advise it is a minefield. We are also a small company of 6 employees including the two directors, we use a company called Peninsula Business Services Ltd I can pm there telephone number if you are interested.

 

[stevieb15]

Whilst I do heed the often used comments like "its only some bloke on t'internet", I would love some points of view. We are a small company under 5 employees.

I have to organise my second sacking. The forst was a long time ago, dead straightforward. This time its my top man, who I havent seen since I got back from abroad. Got a text first day back after the start of work "not well". Got a text next morning b4 start "dad not well we are calling doctor" came from his phone. That was last week, nothing since. I didnt manage to stop his pay in time for last week (I suspect he knew the timescales involved).
Have since heard that whilst I was away there was one instance where he was 1 hr late, no apologies to staff, wouldnt take their calls wondering where he was etc. He has also taken a small (under £100) amount of cash out of the "unforseen running costs" money left while I was away, he didnt ask despite the fact we were in text contact during holiday, told another staff member "I'm borrowing that".

Back story is that I think he's a boozer, money problems, recent bereavements, single parent etc etc. I gently warned him I wasnt happy with his performance a cpl of months or so back, he agreed he'd been off the boil. Been on the books for 18 months, I've been good to him, sold him cars cheap, helped him with them etc, also loads of time off for said bereavements, lent him company vehicle etc etc.

I heard at the weekend he'd ben in touch with another staff member, so he was clearly up and about.

I just want rid now. Seems like he's right royally making a mug o f me yet reading ACAS and CAB websites it seems its all favouring him. The corker is that he owes me money, too.

Can I use the "borrowed" money as "theft" therefore gross misconduct?

Cheers

Is his behavior out of character, if not why haven't you done something about it earlier. If it is out of character why aren't you concerned about why he is acting in this way. As he was your "top man" it seems to me that his loss may be to the detriment of the company and rather than reaching the "you're sacked" position you should be trying to understand what has changed his behavior.
I am not a yoghurt knotting liberal, employ 50 people in manufacturing and installation and believe in sacking idiots, but...something doesnt quite add up here!

 

[Mr E]

It sounds to me like the guy is having a breakdown or something.
Don't forget that as an employer you have a 'duty of care' over your employees.
He may be having a breakdown due to work related stress!
I would, as has been suggested, take advise from an employment law specialist.
But I would also try to contact him to express your concerns.
As for the money; if he has taken it for his own purposes rather than for business use and has done so without consent (and of course if it not standard practise) then I would say that it could be considered theft and therefore gross misconduct.

Finally; follow your procedures and ACAS recommendations to the letter to avoid an automatic unfair dismissal.

Good advice here.

You will need to be able to demonstrate your "duty of care" and that you followed your disciplinary process (usually a minimum of one documented verbal warning and one formal written warning). You will need to set reasonable timeframes for behaviour to improve.

It is a minefield - I'm in a very large company with specialist support in place for such events and it still goes wrong on occasion.

 

[timskemp]

When I had employees, I used peninsula also for dealing with employment law and tribunal and arbitration issues.

I'm not going to give any advice other than think before taking any action, and try and sort things out amicably and in accordance with any precedents and procedure already in place. As mentioned above if this is out of character there is probably some external influence in the form of stress or breakdown to consider, you may be able to help and come out stronger together in the future. It's difficult in a small business to lose anyone.

 

[TonyVianoAmbiente]

I'm not going to give any advice other than think before taking any action, and try and sort things out amicably and in accordance with any precedents and procedure already in place.

From personal experience of a similar situation I would strongly suggest not speaking to the employee until after taking professional advice.

"Sorting things out amicably" might sound good in today's touchy-feely world but making any sort of concession may limit the employer's ability to terminate employment at a later date.

So take advice FIRST. Only then speak to the employee, and only using the approach and form of words that the experts advise.

 

[chrisdovey]

do you give your staff employment contracts? if you do the disiplinary procedure should be set out in there. ie verbal warning,first written warning, final warning, then dismisal. also reasons for imidiate dismisal for ground under gross misconduct.
if he is not contracted or has been with you under a year then he has less rights than ones that have.

i would personally say that the takeing £100 with out asking anyone or reasons for needing that amount of money would class as or be very close to gross misconduct, if you have said they need to ask to take money out or provide recipts for what was bought that was required

 

[NewMB]

As far as I know, you must do a verbal warning then two written notices before you can actually sack anyone.

However, if the missconduct is grave enough, a final warning will be sufficient.

YOu could also go down the route of just making this person redundant. Pay him the notice, less what he owes you and that's that. If he then kicks up a storm about you deducting money, I would say, in writing, that you will need receipts for these monies or otherwise he can forget them.

Simple.

Then go for professional advice and at the same time save a bundle.

 

[jonnyboy]

I had posted a reply to several comments but it disappeared while the forum was down

When I said top man I meant 2nd in command, therefore absolutely has to be responsible/lead by example etc. He has been in decline for several months but due to bereavement recently I felt a "quiet word" was enough. Evidently not, its my fault for being too soft I think. Never again.....

I just do NOT think it is my responsibility to go chasing around after people who have so little thought for others than themselves to see if they are going to turn up. I am a VERY reasonable, fairly caring person who has been taken for a mug. I note the comment about "he would be a big loss". One word - trust. How can I ever trust someone again if they have acted in this manner, and effectively (allegedly for the watchers!) stolen from me. We discovered today a piece of missing equipment which was passed to him to return to its rightful home. It hasnt been seen since, and a related piece of equipment has also done a walk (seemingly) from another location, which looks very bad, doesnt it?

No formal contract therefore his original offer letter combined with "usual accepted practice" is the way I have to work. It's up to me to decide what constitutes gross misconduct, then try to defend my thoughts if a tribunal occurs. In reality, I could say that if an employee was seen by a customer picking his nose in the van I classed it as gross misconduct and sack him, however in reality a tribunal would think I was taking the ****. I have theft, and none-communication to use, so I have.
The trouble is that no-one is prepared to put their neck on the line to confirm what you CAN do, only what you CANT. Crazy......

 

[chrisdovey]

personally what i would do is send him a letter to his home adress reqesting a to attend a disaplinary meeting (you have to give him 7 working days between the date the letter was writen and the meeting, so he has time to get advice) in the letter state the points you have said about, and that you would like him to attend on this date to discuss these point. have the meeting, put your points accross and listen to what he has to say. then depending on that either say there an then what phase of the disiplinary procedure your going to take ie verbal, first written warning, final warning, or just straight sack under gross misconduct. or tell him you will get back to him on your decion as to what your going to do.

 

[jonnyboy]

well, after musing and musing, and looking into my options I realised that trust had completely broken down so I acted.
A learning curve, thats for certain. Contracts are coming in asap for remaining staff, and I won't be as soft again, thats for sure.
The text message I eventually got in response pretty much proved I had done the right thing, and of course you hear little bits and pieces after the event don't you? From the outside looking in it's very sad, especially in the curent economic climate.
But you'd think with all the uncertainty around people would be keener to be A1 employees wouldn't you?

I guess I will need to take steps to recover my property now, that will be interesting......