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Matthew Whelan

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Ask the expert: Notice period when dismissed for misconduct

A sick employee stated on Facebook that she was out socialising on the night of one of her sick days, and she was dismissed immediately. Matthew Whelan and Esther Smith advise whether she is entitled to pay in lieu of notice.


The question

We recently dismissed an employee after she was off sick for two days but stated on Facebook that she was out at her friend’s drinking on the night of the first day ‘sick’. She was at the end of an extended probationary period (extended due to many misgivings, mainly reliability and absenteeism), and was about to be given notice. However, after having been caught taking a sicky, we dismissed her on the spot. Is she entitled to pay in lieu of notice?

Legal advice


Matthew Whelan, solicitor, Speechly Bircham


She will not be entitled to a payment in lieu of notice if her conduct which led to the dismissal constituted gross misconduct. Dishonesty is a possible example of gross misconduct.

She may however have an explanation for what happened which could mean it was not gross misconduct. You should therefore have given her the opportunity to give an explanation and take this into account. You may need to follow the ACAS code of practice. If she has over one year’s service then you need to take into account unfair dismissal rules – which would require you to follow a fair procedure, as well as having a fair reason to dismiss her.
Another reason for giving her an opportunity to explain what happened is that it may highlight any possible discrimination. If for example she suffers from depression (and this constitutes a disability) and this was the reason for her absence there is an argument that going out for a drink with her friends would not be inconsistent with her sickness absence meaning she has not been dishonest and to dismiss her may constitute disability discrimination. This is of course a complex area of law which very much depends on the circumstances.
It is usually best to follow a procedure and let someone have their say to ensure you make a decision knowing all the facts and risks.
Matthew Whelan can be contacted at [email protected]. For further information, please
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Esther Smith, partner, Thomas Eggar

Whilst it appears that this lady has less than a year’s service, and cannot therefore claim unfair dismissal, she can bring a claim for breach of contract. In order to justify a dismissal without notice you really need to have conducted a disciplinary hearing and concluded that she was guilty of gross misconduct. 
As you have not done this, and simply dismissed on the spot with no process, she has a good claim for breach of contract in respect of her notice period.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please

One Response

  1. Notice period when dismissed for misconduct
    A proper investigation should have taken place prior to this employee being dismissed on the basis of a statement made on Facebook. Such an investigation would have established whether or not her claim, on the social network, was true. It might well have been the case that she was trying to impress friends about a party she attended the year before.

    In my view, she was entitled to due process and the right to be presumed innocent until proven guilty.


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