‘I know my rights’ employee
We have a very troublesome employee who has been with us for 13 months. Apart from the fact that her colleagues hate her nor do they not trust her, she is someone who is always claiming that “I know my rights and you cannot do that” She is very convincing but we have had enough of her being so ‘high maintenance’. We invited her to a meeting and decided at that meeting, to dismiss her with immediate effect, giving her one months pay in lieu of notice.
She has raised a Grievance making the following claims which we are worried about:
- She says we cannot dismiss her with immediate effect. This is something that can only be done in cases of gross misconduct. The law states that “Gross misconduct can include things like theft, physical violence, gross negligence or serious insubordination” or failure to comply with the definitions as laid down in the Staff Handbook.
- The ‘alleged incidences of gross misconduct’ should have been communicated to her in writing at the same time as requesting a meeting to discuss those ‘alleged issues’.
- She is also asserting that we cannot dismiss her without following the full disciplinary procedure which is in the Handbook.
- Finally she is saying she will claim unfair dismissal.
Peter replies:
As you have dismissed her she has to appeal against her dismissal, not raise a Grievance, and if you were a client, we know that you would have already told her that in her dismissal letter. We also know that you would have told her in the invitation letter what the issues were, and that the consequence of the meeting might be termination of employment. She may argue that you could have told her more, but the important thing is to provide enough information to help her prepare and not to surprise her with new issues.
Looking at your contract, it does allow for dismissal with payment in lieu of (instead) of notice, so you can dismiss with immediate effect. Even if it did not and you were to do this, there are very few circumstances where she could enforce her ‘right to work’ so do not worry about that. In theory she could claim that you are in breach of contract by dismissing outside of your contractual authority, but there would be no benefit to her doing so as her damages would just be the notice pay which you are paying to her.
Our clients have Disciplinary Procedures in their Employment Handbook which is issued to employees, that makes it clear that the full disciplinary procedure does not apply during the first two years. If you have the same contractually you can do just that. The two year provision mirrors the statutory period, during which she has no right to claim unfair dismissal, so her threat is an empty one. She could try a claim for discrimination or one of the automatically unfair options but the fact that you are following the basic ACAS approach of:
- Inviting her to a meeting, with right of accompaniment
- Holding the meeting
- Giving her the right to appeal
makes it even less likely she will succeed if she attempts to bring these items up later. It is always advisable even with short service staff to undergo a minimal dismissal procedure such as described above, as that reduces the threat that the ex employee has any basis for a claim.
The guidance provided in this article is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes. Before you take any action, make sure that you know what you are doing, or call us for specific advice.
