My Employee wont leave.

[harrowwoman]

Hi, perhaps someone can help me here, I am at my wits end. You always hear about employers mistreating employees, but what about the reverse scenario?

I took over a homeopathy practice a while ago, the owner suggested that I keep the practice manager/nurse as he was familiar with the running of the business and the patients and I agreed. The business has not done well, losing money and I decided to put it up for sale. I informed the practice manager that I could no longer keep him on, he said he would not leave until he found another job. Just before Christmas I asked him if he had found anything, he said he had not but was still looking. I had not drawn up a new contract with him,he was still under the old contract signed by his previous owner.

 

Despite informing him that I do not have the work to keep him on, he will not leave. I do not need a full time , and cannot afford to pay him the same salary with the same hours as he had before. I had to cut down the hours, and also the salary.

 

He has written to me that if he continues to work for me it will be 'under protest' until things are resolved regarding his salary.I feel like this is a veiled threat.

 

The original contract states notice is to be 4 working weeks. Now, do I just give him notice as per the contract, or do I have to accept him continuing to work for me until he finds another job?

[ims21]

Hi and welcome to CAG

 

I've moved your thread to the correct forum where the guys will be happy to advise as soon as they are available

 

ims

[honeybee13]

Hello there. I expect the forum guys will be along later with advice for you. It sounds tough for you.

 

Have you told your employee the things you've told us in writing please?

 

My best, HB

[andydd]

Well..there are all sorts of laws/rules in place if a company is getting rid of a large number of employees, Im sure this doesnt apply to just one.

 

I would of thought you could just give him a letter saying his job is at risk (explaining that you are not getting rid of him, but the role is dispearing, clearly you cant really make someone redundant and then employ someone else).

 

Then maybe a week later give him the required notice and then at the end of the notice period pay him redundancy if applicable...and any rem,aining holiday pay etc.

 

You clearly do not have to keep him on untill he finds another job, that could be never.

 

Why dont you just not pay him after the notice period is up, let him work for free if he wants

 

Andy

[assisted blonde]

I would say just give him the required notice, you cannot be expected to continue employinh a person if you dont have the work, cant afford them or dont need them. you certainly dont have to keep employing them until they find another job.

[becky2585]

You're in dangerous territory here.

 

Did you inform and consult over the transfer? If not, that could merit an award of 90 days gross pay in itself.

 

Has the employee got over a years service? If so, add on an unfair dismissal claim and statutory redundancy payment.

 

I'd seek legal advice ASAP.

[andydd]

Agreed..the lack of contracts either way could cause problems. Many small busineeses often fail to do things correctly and this comes back later to bite them in the ass.

 

Andy

[becky2585]

Blimey, just noticed you've varied his hours and pay too. That's an ongoing unlawful deduction from wages claim.

 

I think your best bet here is a compromise agreement. You really need to protect yourself here as you could get taken to the cleaners!

[maroondevo52]

How much service does he have ?

 

You have employed him under his standing Terms and Conditions from his previous employer therefore this is legal and biding, however due to the downturn in the Business / Market you have advised him that you are changing his terms and conditions by reducing his hours / salary therefore you must have put this in writing to him, overiding his existing contract.

 

You state that the employee has noted his discontent to the change although he has continued to work for you under the new Terms and Conditions.

I would suggest that If you cannot afford to keep this employee on, then the only option is to make him redundant. (This is a fair dismissal )

 

The fact that he has written to you with regards to him working under protest, stands him in good stead should you unfairly dismiss him. This means that should he take you to an employment tribunal the origional contract will be referred to.

 

If you just give him 4 weeks notice without justification or reason other than redundency, this is an unfair dismissal.

[harrowwoman]

Thanks for your help guys, the agreements were all done verbally-nothing in writing, should I decide to go the redundancy route would I have to take into consideration the years that he worked for the practice before I bought it as well? Or just for the time he worked when i took over?

[becky2585]

TUPE works to preserve his continuity of employment, so his whole length of service needs to be taken into account.

 

I really do think you're in a sticky situation here and I can't recommend highly enough that you seek the assistance of a solicitor. These are potentially very complicated and costly issues you're dealing with and I wouldn't like to see you unnecessarily forking out a shed load of money over this.

[Sidewinder]

Wow! This is a very expensive timebomb waiting to go off and it sounds from your first post that the employee may well be either getting up to speed about his rights or is already aware of them and is waiting to see your hand. Please take Becky's advice and seek legal advice before you do anything - she knows what she is talking about.

 

As already pointed out, several actionable events already seem to have taken place and at the very least you are going to have to make this employee redundant with a payment based on service for the old owner plus the time that you have owned the business, with notice given according to that length of service. The 'verbal' nature of the contract matters not if he can prove earnings, hours etc and as stated there are other payments due, which if he went to a Tribunal I have very little doubt that he would be awarded them - lack of TUPE consultation, unlawful deductions just for starters.

[harrowwoman]

I can feel the noose tightening around my neck already!Becky's advice seems the best route to take

Thanks again!

[SweetLorraine]

Indeed - seeking a solicitor;s advice would seem to be the best route for you to take.

 

It's a contrary situation when the employee feels they have the upperhand to the extent that they are telling the employer how (and when?) they may leave.... some day. Maybe the 'mind games' are driven by the fact that your employee was there (in the practice) before you and feels that they can tell you what's what.

 

The introduction of a third 'presence'/player (i.e. the advice of the solicitor - whether that be one-off on onging advice) will probably take the wind out of this employee's sails and embolden your own position enormously - "I hear your concerns, however the solicitor has informed me that, in fact, I just need to inform you that... etc; etc;... and I will be giving you your notice."

[assisted blonde]

Can someone just clarify for me, if you dont have the work, cant afford to employ someone etc why cant you give them the statutory notice required under a contract its not really very fair to have to keep someone on if you dont have the work. Would it be different if you were a ltd co rather than a sole trader? I understand over 1 yrs service and employment protection , redundancy etc but there must be somthing else an employer can do.

[Annette1973]

Can someone just clarify for me, if you dont have the work, cant afford to employ someone etc why cant you give them the statutory notice required under a contract its not really very fair to have to keep someone on if you dont have the work. Would it be different if you were a ltd co rather than a sole trader? I understand over 1 yrs service and employment protection , redundancy etc but there must be somthing else an employer can do.

 

I really feel for you. I too was in this situation. My husband is a Hairdresser and we had our own salon. We had 6 members of staff, all of which were self employed apart from one. This girl requested to be employed and, as I used to be responsible for HR in my previous job, I knew it would be fairly easy to do, so my husband and I allowed her to work for us on an employed basis. I drew up a contract and we both signed it, blah, blah blah...... anyway the upshot of this was that this girl totally took advantage of us. She took at least 2 sick days a week, she actually cried if we asked her to do any work when she was in. She brought her personal problems into work, her and her father regularly had a shouting match in the middle of the salon, with customers present. The last straw came when she had a full list of appointments one day and she could not be bothered to come in so she got her Nan to call in sick for her. I went into town the same day to collect some supplies, I see this girl outside Costa Coffee with her friends, laughing and joking, she did not look sick at all. I fired her on the spot, I knew that it may have serious repercussions but I was too angry to care. Her and her family threatened me with all sorts of action. It all worked out in my favour at the end as she smashed all of my car windows one night, unfortunately for her we had CCTV. Funny enough, she never once mentioned unfair dismissal again. Later we found out that she had been sacked form every job she had had since leaving school. I know my tale is of no assistance to you, but sometimes it helps to hear from others who have been there. I suggest redundancy for your surplus employee, however, just to be on the safe side, seek advice first. If you can't afford a solicitor, your governing body should give you some free advice. I don't know who the governing body is for Homeopathy but, we had some great advice from HABIA, the hair and beauty industry body. Good luck and keep your chin up.

[becky2585]

Can someone just clarify for me, if you dont have the work, cant afford to employ someone etc why cant you give them the statutory notice required under a contract its not really very fair to have to keep someone on if you dont have the work. Would it be different if you were a ltd co rather than a sole trader? I understand over 1 yrs service and employment protection , redundancy etc but there must be somthing else an employer can do.

 

 

You have to have a potentially fair reason for dismissal, namely capability, conduct, redundancy, illegality or "some other substantial reason". So in a situation like this where there is genuinely no work, the potentially fair reason is redundancy, but a fair procedure would still need to be followed.

[assisted blonde]

I thought that would be the case,(my employment law is a little rusty) but unfortunately with redundancy you have to pay out and this can cost quite a bit depending on the number of years service, and if you havent got the money its a problem. However it would probably save money in the long run rather than keep paying a monthly wage to someone you dont need.

There are occasions where the employer really does seem to get the rough end of the stick, glad I no longer employ anyone.