How easy is it to fire someone with 5yrs unblemished record

[Cruet1]

Hi, 

Is there a generic procedure that has to be followed if a business wants to fire an employee who's been working there for over 5 years with a hitherto perfect attendance record and no disciplinaries or written warnings on file? 

 

Can anyone explain to me what "Gross Misconduct" means, and if there is a legally recognized bar for which it is met across UK businesses, or whether the term is subjective as the owner of the business sees fit?

 

I'm trying not to personalize this too much, so would appreciate any advice in a general sense. Is there legislation that states there must be, for example, a verbal warning first, followed by 2 written warnings, then 'boom!' sack time. Or can a boss just fire you because she doesn't like your face - (providing of course that 'face' doesn't look pregnant, black, gay, transgender, etc, or any other protected characteristic - just a regular 'unprotected' straight white middle-aged male!)

 

Legislation on workplace FACT, rather than 'feeling'/opinions welcome please. Ta.

 

[honeybee13]

Hello and welcome to CAG.

 

Have you had a look at ACAS's website, for example? They have quite a lot of information about disciplinary procedures.

 

Best, HB

[Cruet1]

Hi Honeybee, thanks, no I've not checked. I have a look now. Cheers. 

[Cruet1]

Hello again Honeybee, I've had a quick read of the ACAS website and it doesn't really answer my question. Best I can work out on a quick reading is that if I have two employees who are massive pains in the a*** and failing in their roles - Employee 1, is BAME & "Neurodivergent" female then it could be a problem to fire her; But if employee 2 is white middle-aged man then it's quite simple.

 

Is that about the size of it?

 

You can be cr*p at your job, but I can't let you go if you are 'neuro-divergent'? (Has being an a**hole been medicalized yet? Is it a protected characteristic yet?! LOL)

 

Back to my original question please - does anyone know if there is a two letter warning system that has to be followed, or whether 'gross misconduct' is a fluid term dependent on how the owner of the business decides? I can't find this answer on the ACAS site. Ta.

 

[king12345]

Well, if they catch you stealing they can surely sack you on the spot (or after a very short "investigation").

Slapping the director's bum is another mo no, same as punching your manager in front of everyone. 

Anyhow,  any company that wants to get rid of you could make some calculations,  sack you without any reason and then pay compensation that employment tribunal would usually set at 1 year wage, save for same particular situations. 

In other words they can buy you out.

[king12345]

We crossed posts.

The white middle aged man see my previous post.

The neuro-something, if your company can afford the compensation and bad publicity, you could sack her.

Why don't you pass the bucket to your superior?

They're paid more than you to sort these kind of problems. 

[Cruet1]

King - Unfortunately I own the company! (Although the idea of passing someone a bucket does appeal to me!

[king12345]

You're bummed then.

No,really, you need to have an official meeting with them and let them know that they need to pull their weight. 

Set them clear targets (short and long term) so everybody knows what's expected.

If they don't want to cooperate then you could start issuing performance warnings that might eventually lead to dismissal.

[Cruet1]

Apparently "reasonable adjustments" to being a useless pr*ck is now a legal requirement!

Don't get me wrong - if someone is disabled and brilliant at their job then I'd be more than happy to move heaven and earth to accommodate their needs. I'm not not talking about disabled here. I'm talking about an absolute grade A a*ss who unfortunately is very confident in their newly found 'protected characteristics' as if it's a shield against any future criticism!

It really sticks in my craw!

However, I think it may need proper legal advice rather than an opinion website.

Cheers anyway. 

[honeybee13]

I think an employment lawyer is probably a good idea for you. Sometimes you need more than forum advice.

 

HB

[unclebulgaria67]

 As company owner, you should have a performance management policy in place, with all staff having documented expectations for their roles. And the line manager of the staff should hold regular reviews with the staff. The reviews are 2-way, with each side able to advise of any issues found. If the member of staff has health or disability issues, then you need to document what these are and how member of staff feels these affect their performance.

 

Suggest that you need to contract a Human Resources professional to review your companies policies and management of staff. They will also review the current issue.

[king12345]

On this site there's someone who is an expert on employer's rights.

Hung about long enough and they'll chip in...

[Cruet1]

19 minutes ago, king12345 said:

On this site there's someone who is an expert on employer's rights.

Hung about long enough and they'll chip in...

Ok cheers I'll wait for their input...

(It's not an urgent problem, but I'd like to be backed up with some links to legislation when I finally make my endgame move, hopefully someone here can illuminate).

[fkofilee]

So what is the reason you are looking for them to disappear from the Business?

Are they Emotionally compromised? 

Or is it a Victim mentality? 

 

Id really like to know - I used to deal with a Company Owner similar to your approach - Turnover was quite high at this company because of how the MD behaved. 

Granted its his company but even so - There is an acceptable approach to the interacting with people. 

[BazzaS]

Gross misconduct isn’t strictly defined, it is more of a “I can’t define it, but I recognise it when see it” thing.

https://blogs.wsj.com/law/2007/09/27/the-origins-of-justice-stewarts-i-know-it-when-i-see-it/

 

if you dismiss someone for gross misconduct they can ask an employment tribunal to decide if it was GM, if they would otherwise be protected from dismissal.

 

Instead of going down a GM route, the “capability” route would be a different option.

That would require a documented and considered process being followed.

That would include meetings where they were given feedback (& they can also give feedback!) and an opportunity to fix any deficiencies.

 

If they have brought up (or do so!) any disabilities, then they are entitled to reasonable adjustments : that doesn’t mean you can’t dismiss them if they can’t do the job, just that you want to protect yourself if they choose to go to an ET. 

 

The same for if they have any protected characteristic : if doesn’t mean they can’t be dismissed, just that if they claim discrimination you can show that there wasn’t discrimination and that their dismissal wasn’t because of their protected characteristic

 

so, it isn’t “harder” to dismiss someone with a protected characteristic, just be prepared to demonstrate it isn’t “easier”.

[Sidewinder]

Gross Misconduct isn't strictly defined - it is an issue which is considered so severe that it destroys the mutual trust and confidence of the employee/employer relationship. There are obvious examples such as violence, theft, drugs etc, but there are also other examples which may or may not be considered serious enough to dismiss. If the employee were to take the case to a Tribunal the only issues to consider are whether the dismissal was 'reasonable' in the circumstances (any reasonable employer would have reached the same outcome) and whether the decision was made after a 'reasonable' investigation considering the size and resources of the employer. For any dismissal, either for capability or conduct, a 'fair' procedure must be followed. Even in a clear-cut case of gross misconduct, this is nothing like you would see on TV with an employee being bawled out and told they are fired. For suspected GM, even though it might be appropriate to suspend the employee (on full pay), this should be for evidence gathering purposes where necessary and the employee should be given written confirmation of the suspension and the reason for it. They should then be given a written invitation to attend a disciplinary hearing and that dismissal may be an outcome to that meeting, and they should be given the opportunity to have a colleague, Trade Union Representative or Trade Union Official accompany them to the disciplinary and to help present their case, take notes or to confer during the hearing. If representation cannot be arranged or if there are other reasonable barriers to the meeting being held then an alternative mutually acceptable date should be agreed. Following the hearing and when a decision is made the employee should be informed of the outcome in writing and given the right to appeal

 

Same procedure applies in conduct issues short of GM, but a fair warning procedure should be used. No suspension required, but written details of the complaint, an invitation to a disciplinary hearing with warning over possible outcomes, right to be accompanied and a right to appeal any final decision. If the complaint leading to the hearing is upheld, then a warning, and notification of how long this would remain on file (no longer than is 'reasonable' - the employee must not have it hanging over them forever), and that any subsequent breach might result in further action up to and including dismissal

 

For matters of capability, then possible reasons for the underperformance should be discussed at a less formal investigatory hearing so that the employer can explore ways in which to overcome any obstacles - proper or additional training, are there health or personal issues affecting performance? Is there anything the employer can do to help? There may be a disability (not necessarily physical or obvious) where the employer once aware, should make any reasonable adjustments necessary to allow the employee to work within the limits of that disability - what is 'reasonable' will vary for both parties but you should be mindful that any dismissal as a result of the disability will likely be unlawful unless any such adjustments have been considered. This may be to allow extra time to complete tasks, allowing more latitude for absence, where the absence is caused by the disability, changing workstation, or improving access to a workplace for the employee. If however there are no such issues affecting performance then the employer should set reasonable targets and timescales for improvement and dates set for progress reviews. If underperformance continues then there can be a move to a warning process whereby dismissal could result if sufficient progress is not made. Again, keep everything confirmed in writing and allow the legal rights for accompaniment and appeal

 

These procedures apply to all employees and must be applied fairly and evenhandedly - irrespective of gender, race, religion etc. Dismissal following a fair procedure will not be a problem irrespective of race, religion, disability. Your suggestion that you have to treat one employee differently due to a protected characteristic is not true, providing that you have used a fair procedure and have made allowances for any protected characteristic. It is a myth that you cannot dismiss for long term sickness, or cannot dismiss a disabled employee, but you must follow fair procedures. These rights apply to all employees irrespective of service, but should the employee have less than two years service, you have a certain protection against a claim for Unfair Dismissal unless the dismissal was due to a protected characteristic

 

Not at all sure that I would agree with the way that you worded your OP?

 

"I'm trying not to personalize this too much, so would appreciate any advice in a general sense. Is there legislation that states there must be, for example, a verbal warning first, followed by 2 written warnings, then 'boom!' sack time. Or can a boss just fire you because she doesn't like your face - (providing of course that 'face' doesn't look pregnant, black, gay, transgender, etc, or any other protected characteristic - just a regular 'unprotected' straight white middle-aged male!)"

 

As said previously, policies and disciplinary procedures must be evenly applied. You 'could' dismiss because you don't like the employee's face/tie/aftershave, but it wouldn't be lawful unless that employee was actually doing anything wrong (although if employed for less than two years they could do little to take the case to a Tribunal unless they allege that the dismissal was for a protected characteristic), so you should look at attitude, workplace harmony, negative impression of customers etc rather than personality itself and use a warning process

 

Of course any employer, of any size should have adequate disciplinary rules in place and available to staff otherwise it becomes very difficult to allege that rules or expectations have been breached when staff are unaware of what the rules are or what could result from breaking them, so if you do not have these in place then you could find things very difficult - dismissal for punching a colleague will almost certainly be reasonable in most circumstances, but for lesser misdemeanours, employees must know what is acceptable and not have to guess and be ambushed at a disciplinary. You must also apply the same disciplinary sanctions to all employees - allowing one to remain with a warning but dismissing another for the same offence could easily be construed as unfair. Hopefully you do have such procedures published and employees are aware of them?

 

I have probably missed something out of the above, or have applied the procedures incorrectly - Emmzi or Sangie are much better qualified than I - but hopefully the above helps. The ACAS Code is not law as such, but is used as a measure by Tribunals and failure to apply the Code could, in the event of a successful claim, be used to increase any awards made. Equally, following the Code and being able to demonstrate fair process and reasonable sanctions made will protect you from false or spurious claims

 

 

 

 

[Cruet1]

Thanks Sidewinder, exactly the info I was looking for. Ta.

[ericsbrother]

so failing in thier productivity isnt GM so you follow the normal disiplinary route.

Does your company have regular or annual appraisal? failing to hit those benchmarks makes it easier to move on to the next step.

 

Now lets turn this around 180 degrees, what do you want from an employee and how can you get these individuals to perform to an acceptable level.? You have invetsed money and time in them so why get rid of a person who could once again be an asset. If the job/company has changed and they havent changed with it then redundancy could be an option but what about retraining? If they are genuinely bad at their job and cant be trained to improve them you can let them go on capability grounds as long as you follow procedure and it will be advice, warning, final warning dismissal with suitable periods between each stateg to allow them to try and change/improve.

 

however, your tone doesnt instil me with much confidence that you have the determination and patience to resolve your problems without ending up in a legal battle. Ask yourself why it has come to this in the first place and what could you have done differently when you saw the signs some time ago as does appear to be the case. Often not actively managing situations stores up problems for the future because the staff member will wonder why it has suddenly become a problem. the same goes with peopel who get the boot for abusing social media access, they see everyone else doing ti and the company desnt have a clear policy so the first they realise they have a boundary is when they overstep it and get fired.

[fletch70]

Your employees should also have clear terms and conditions 

 

If they do not, I fear you could be heading for more trouble if you try to fire someone - an ET could increase the award if you have not followed procedure 

[Manxman in exile]

You want to fire someone with an "unblemished" (your word) employment record?