Sacking someone - Any advice on the legalities
Discussion
As this is a potnetial minefield do any PHers have any experience in HR or employment law?
In a nutshell my wife owns her own hair salon, one of the employees is a part timer (16 hours a week) who we have found out has recently started her own mobile business from home as well. At present we can't prove she's taken clients from us to instead to do 'out of' work but over the last few months her clients have dwindled a fair bit - this time last year for example she was snowed under with appointments, this year she has lots of availability. Her attitude has also been poor and shes often late for work or ill.
Ignoring the obvious tax implications for her (she's certainly not declaring this extra income) can we get rid of her for gross misconduct under conflicts of business interests? Are there any steps we need to ensure we follow for this?
In a nutshell my wife owns her own hair salon, one of the employees is a part timer (16 hours a week) who we have found out has recently started her own mobile business from home as well. At present we can't prove she's taken clients from us to instead to do 'out of' work but over the last few months her clients have dwindled a fair bit - this time last year for example she was snowed under with appointments, this year she has lots of availability. Her attitude has also been poor and shes often late for work or ill.
Ignoring the obvious tax implications for her (she's certainly not declaring this extra income) can we get rid of her for gross misconduct under conflicts of business interests? Are there any steps we need to ensure we follow for this?
You probably want this moving to Jobs and Employment matters.
There's nothing here that's gross misconduct.
What does the contract of employment say about her working elsewhere, or running her own business? You have provided her with the contract, and it does say exactly what you need it to say. ...
Realistically, if she has that much availability, just reduce her hours, again in accordance with her contract.
There's nothing here that's gross misconduct.
What does the contract of employment say about her working elsewhere, or running her own business? You have provided her with the contract, and it does say exactly what you need it to say. ...
Realistically, if she has that much availability, just reduce her hours, again in accordance with her contract.
First of all what does her contract say? The last two jobs i have held it said in my contract that i could not use contacts/customers of my employer to make money for myself while i was employed and i was unable to do so for 6 months after i left the company. How long as she been working for you? Im confident that if its less then a year you can let them go without any legal issues (i.e she could not take you to an idnustrial tribunal etc if she hasnt been employed with you for over a year)
If shes is late and ill all the time you can take disciplinary action, but it depends on the details of her contract. Typically it would be a verbal warning, then then a disciplinary hearing and so on.
If shes is late and ill all the time you can take disciplinary action, but it depends on the details of her contract. Typically it would be a verbal warning, then then a disciplinary hearing and so on.
I'd be having a carefully worded chat with the employee to find out how happy they are in their current job and if there are any issues they feel should be brought to their employers attention. Have both employer and employee sign the minutes.
Depending on how it goes from there, just make sure what you do is reasonable amd does not contravine either employment law or her contract.
A good place to look for procedural workings would be the ACAS website.
Depending on how it goes from there, just make sure what you do is reasonable amd does not contravine either employment law or her contract.
A good place to look for procedural workings would be the ACAS website.
Thanks so far, I don't have her contract in front of me (it's at home) but I know theres a clause about working once left within a certain radius of our salon for x months. I'd have to check on the taking clients part. She's worked for us 4 years now and was one of my wifes best friends - one lesson learnt is never employ your friends!
We're on holiday next week but will find an employment lawyer to have a word with when we get back.
We're on holiday next week but will find an employment lawyer to have a word with when we get back.
IMHO Frequent late arrival and no shows is an easy disciplinary meeting, hear the employees side, level your concerns and take appropriate action. Issue a written warning if it is justifiable along with a measurable plan to rectify the issues and set a review time scale.
If all is resolved by the end of the review period, job done. If not final warning, same process then escort her from the premises.
Make sure you have a written process in place and follow it to the letter and record times of late arrivals and unexplained days off as evidence.
If all is resolved by the end of the review period, job done. If not final warning, same process then escort her from the premises.
Make sure you have a written process in place and follow it to the letter and record times of late arrivals and unexplained days off as evidence.
AJS- said:
Since she is part time and hourly, couldn't you just reduce her hours to zero?
Potential constructive dismissal avenue opening up with that.The things to consider are....
Make her redundant. But you wouldn't be able to replace her for a while.
Enforce her terms and conditions. Warnings etc when late. However this has the ability to go legal.
I'd go with redundancy.... The business can't afford her etc
Sacking needs a specific offence - or a series of carefully documented grievances. It's a nightmare.
Zippee said:
Thanks so far, I don't have her contract in front of me (it's at home) but I know theres a clause about working once left within a certain radius of our salon for x months. I'd have to check on the taking clients part. She's worked for us 4 years now and was one of my wifes best friends - one lesson learnt is never employ your friends!
We're on holiday next week but will find an employment lawyer to have a word with when we get back.
What are the exact terms of her contract? Regarding conduct/gross misconduct as well as the disciplinary procedure.We're on holiday next week but will find an employment lawyer to have a word with when we get back.
Just so you know, the exclusion clauses you refer to tend to be very, very limited in their efficacy when a court is asked to enforce them.
Can you prove she is taking clients away from the salon?
Redundancy is the safest option.
As you said, when first taken on she was very busy. She now isn't, so you can legitimately say that due to the falling off in work you are very sorry but you no longer need her and will have to let her go.
Sounds like she's shot herself in the foot!
Friend who had an employee they wanted rid of (many similar issues to yourself) who went down exactly that route. Business had genuinely fallen off so he was made redundant. Lots of threats by him that he would take them to the cleaners/tribunals etc etc. He was soon put straight when he went to get legal advice!
Whilst I advise you to take advice from your accountant/business advisers, this link might help to give you an idea of how much redundancy pay you might have to give her.
http://www.direct.gov.uk/redundancy.dsb
As you said, when first taken on she was very busy. She now isn't, so you can legitimately say that due to the falling off in work you are very sorry but you no longer need her and will have to let her go.
Sounds like she's shot herself in the foot!
Friend who had an employee they wanted rid of (many similar issues to yourself) who went down exactly that route. Business had genuinely fallen off so he was made redundant. Lots of threats by him that he would take them to the cleaners/tribunals etc etc. He was soon put straight when he went to get legal advice!
Whilst I advise you to take advice from your accountant/business advisers, this link might help to give you an idea of how much redundancy pay you might have to give her.
http://www.direct.gov.uk/redundancy.dsb
If redundancy isn't a option, then you have no choice but to see if she's broken her contract and if she hasn't then you'll have no choice but to go down the disciplinary route (I don't think you mentioned how long she's worked for you as that has a bearing on your next step?)
However, if you do, you must follow employment guidelines and it could take months to go through the entire process, but you'll get rid and without any possibility of a tribunal.
It's a difficult situation to be in and I often wish we had the US 'hire and fire' approach, it would help small businesses avoid these types of problems.
Good luck either way.
However, if you do, you must follow employment guidelines and it could take months to go through the entire process, but you'll get rid and without any possibility of a tribunal.
It's a difficult situation to be in and I often wish we had the US 'hire and fire' approach, it would help small businesses avoid these types of problems.
Good luck either way.
Zippee said:
Ignoring the obvious tax implications for her (she's certainly not declaring this extra income) can we get rid of her for gross misconduct under conflicts of business interests? Are there any steps we need to ensure we follow for this?
As her employer, you're responsible for dealing with this via PAYE, or are you treating her as a self-employed contractor and paying invoices she presents? Or, heaven help us, are you paying her cash?If the latter, you'll more than likely be responsible for the tax if she doesn't pay it and they find out! If the former, you have nothing to worry about, and if the self-employed, then you can just stop using her. However she might be considered employed if she kicks up a fuss...
IANAL, and you should possibly see one regarding this for the future!
Cyberprog said:
Zippee said:
Ignoring the obvious tax implications for her (she's certainly not declaring this extra income) can we get rid of her for gross misconduct under conflicts of business interests? Are there any steps we need to ensure we follow for this?
As her employer, you're responsible for dealing with this via PAYE, or are you treating her as a self-employed contractor and paying invoices she presents? Or, heaven help us, are you paying her cash?If the latter, you'll more than likely be responsible for the tax if she doesn't pay it and they find out! If the former, you have nothing to worry about, and if the self-employed, then you can just stop using her. However she might be considered employed if she kicks up a fuss...
IANAL, and you should possibly see one regarding this for the future!
I think (know) we are going to more thoroughly investigate the redundancy option. Obviously we won't be able to hire someone else for 6 months or so but we'll cope.
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