The question
I have a part-time employee who works 12 hours per week. He has decided that he does not like his job, does not want to do it anymore and is openly seeking another one.
But the worker is being disruptive and is demotivating other team members. He has been with the organisation for four years and only transferred to my section three months ago. The issue is that we have a very long-winded disciplinary process.
If I dismiss him, does he work enough hours to be supported by the Employment Tribunal Services? Is there a minimum number of hours that an employee needs to work before they can lodge a claim – I know there used to be, but is there now? How can I best deal with this situation?
The legal verdict
Esther Smith, a partner at Thomas Eggar
There is no “minimum hours’ requirement” for Employment Tribunal claims and the vast majority of statutory employment rights apply to employees irrespective of the number of hours a week they work. Some claims will, however, require that a staff member has a number of years’ service before they can bring a claim.
Unfair dismissal claims currently have a one year’s service requirement (this will most likely increase to two years’ service from 06 April 2012). Therefore, although your employee has only worked for you personally for three months, because he has been with the company for four years, he would be eligible to bring a claim.
Given your staff member’s behaviour, you may seek to rely on misconduct or poor performance as your reason for disciplinary action, both of which could potentially be fair reasons and may ultimately result in dismissal. To defend a claim for unfair dismissal, however, you also need to show that you have followed a fair procedure and, if you have a clear disciplinary process, this should be followed.
If the employee has stated unequivocally an intention to resign but has not yet done so, you may have some grounds to take action on the back of this statement in order to terminate their employment. But the circumstances in which you can do this are very limited and are also fact-sensitive so you should take advice.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, a solicitor at Speechly Bircham
Your employee could bring claims, most particularly unfair dismissal and discrimination, if you dismissed him in these circumstances as such claims are not predicated on working a minimum number of hours.
But there are qualifying criteria. So in the case of unfair dismissal, someone must be an employee and have one year’s continuous service. But from what you say, the worker meets these criteria and, therefore, would be entitled to bring claims.
Even though it may be possible to dismiss someone fairly (as long as there is no discrimination) in these circumstances, it would not be straightforward and it is one of the more troublesome categories of dismissal.
You would need evidence of potential misconduct/behaviour and so should consider making notes of any incidents. That way, if you do need to take any formal action, you can be specific about the problems and their effects. This should strengthen your position and make it easier to set out to the employee what needs to change as part of the process.
You are right, therefore, to think about alternatives. You could discuss the issues with the staff member informally to find out the reasons for his dissatisfaction and determine whether there is any way that you can address them.
At the same time, you could also set out your concerns and the standards of behaviour that you expect of him. That way, the issue could be handled more positively, while making clear that his behaviour does need to change at the same time.
Formal or informal approach?
Even if this informal approach does not resolve the issue, it may, if handled correctly, be helpful in terms of future action. It may also focus his mind on whether he does want to move on and find another job or whether he wants to address the matter in order to make his current job work.
Depending on what he says when you speak to him, you could then look at introducing potential changes to address his concerns. If he was good at his old job and it is possible to move him back to that role, you could explore this option.
Of course, taking this course of action entails risks as it may not work and may make the situation worse. But it is worth considering if possible.
If the above action does not resolve the issue and the individual’s conduct does not improve, you may decide that you need to address the situation on a formal basis.
You would need to observe procedural requirements (for example, those set out in the ACAS code of practice as well as any company procedures) in order to minimise the risks of a finding of unfair dismissal if the situation goes to an Employment Tribunal as a potential increase of up to 25% in any compensation could be awarded.
I recommend that you seek legal advice before taking any action so that you are aware of the risk and requirements.
Adam Partington is a solicitor at Speechly Bircham LLP.
