Small business advice- What is gross misconduct?

Loop

Hi my boyfriend needs some advice...he wrote this...



I need some advice, I have had ongoing problems with a member of staff, there is only 3 staff in my company and this person is the main worker doing 34 hours a week. He has not been given a formal written contract as it was a new business, and he was very awkward when we were trying to agree terms, however he did agree, but never signed the agreed contract.

Recently he has been taking time off, working less hours and being generally unreliable and sarcastic. The time is taken usually leaving cover short, but until now I have let him work less as i have been able to get cover.

He was told last week that from now on, if he wanted to leave early for a gig he was to organise cover himself, and get naother member of our staff to do it, or he was not able to leave early.

Yesterday at 4pm he sent me a text while I was away in Wales, giving the weeks figures as usual and saying he was closing the shop as he had a gig and no could cover.

I didnt respond because I knew he would have left the shop even if I had refused over the phone to let him close up.

What I want to know now is where does my business stand? He used to work for me under a different business, doing the same role, but that closed and we relocated and a new business was set up in December 2007.

Do we have to give him verbal/written/final notice, or does this constitute gross misconduct?

I have lost profits because he shut 1.5 hours early, to me this is totally unacceptable especially prime retail day that is saturday.

Can someone give me advice on how to deal with this employee? I dont beleive he actually wants to work for me, because of his 'cocky' behaviour, I have tried to motivate him, as I actually care about the people I employ to no avail.

Many thanks peeps!

mountainofdebt

I might be wrong here but I think your boyfriend was legally obligied to give this person a contract within 2 months of the employee starting - and if the employee didn't agree to it then he would find himself out of a job! (I know when a firm I worked for was taken over I had a new contract with the new firm and was effectively told this!)

It sounds very much as the employee is treating your boyfriend like dirt and your boyfriend is allowing him to, especially as he hasn't taken any formal action against said employee.

It might be worth going to acas to see what action your boyfriend can take.....could the employee be hoping that your boyfriend will sack him and then he could sue for wrongful dismissal?

Loop

I have researched on Acas, but it doesn't give a a simple answer on the rules and procedures he should follow.

He was given a contract but he wasn't happy with it, so it was revised 5 times, then eventually he said if he didn't agree to the terms then they would look for someone else. he backed down and agreed to the terms and pay, but never signed the contract, and of course it is only now we are thinking an unsigned contract might be problematic with this whole dispute...

Horace

I feel sure that I am correct in thinking that even though the employee hasn't signed the contract, he has accepted it by continuing to work for the business and by doing so, he has agreed to all the terms and conditions of his employment.

Perhaps it is time your boyfriend started to instigate the disciplinary procedure (assuming that he has one of course, which he should do if he employs staff).

CFC

How long has the employee been working for your bf? The contract may be oral, and the fact that it has been issued is sufficient proof that the employee has accepted by default, I believe, as there is no other contract which it is superceding. Although I am confused,because you state no contract was issued but also one was issued which the employee refused to sign.

EDIT - I see that you say that the contract was duly issued. It does not matter if the employee did not sign it providing it contains the elements below. It has been issued.

If the contract issued includes the below elements, then the employee has received the statement of particulars which he is entitled to receive within 2 months. If it does NOT include these details, your bf needs to firstly safeguard himself by issuing them ASAP.

The legal name of the employer company - it is a good idea also to include the trading name, if different.
The legal name of the employee.
The date the current employment began.
Any earlier date upon which employment with a previous employer began which is treated as "continuous" with the current employment.
The employee's pay, or how it is calculated, and the intervals at which it will be paid - eg weekly or monthly.
The employee's hours of work.
Entitlement to holidays - including public holidays - and holiday pay. The information must be accurate enough to allow precise calculation of accrued entitlement.
Job title or a brief description of the work.
The address of the employee's place of work. If they will be working in more than one place then this should be indicated along with the employer's address.


Now as you can see from above the contracted hours are included. Generally speaking, your boyfriend must make these hours available for him to work or pay them instead. On the other hand, your employee must also work that number of hours or be given permission not to work them. Failing to attend work without good reason is reasonable grounds to carry out a disciplinary hearing.

Could you post again clarifying the points above so we can give you more detailed advice as to the next steps forward with this employee? It is very important to make sure any action your bf takes is correct.

For future employees, your bf might wish to include a probationary period. This is a period of time,often 3 months, during which the employer can terminate during a probationary meeting if the worker is unsatisfactory. This is a very straightforward method of dismissal.

Horace

This website might clarify the difference between misconduct and gross misconduct:

http://www.iambeingfired.co.uk/misconduct.html

Loop

Thanks CFC, can you clarify what extra info you need? Sorry I read it a few times and I'm having a blond moment....

He wont do anything with this employee till he seeks advice, hence my first port of call being here.

LittleVoice

Loop wrote: »

Thanks CFC, can you clarify what extra info you need? Sorry I read it a few times and I'm having a blond moment....

He wont do anything with this employee till he seeks advice, hence my first port of call being here.

I suggest, from CFC's post:
Confirmation that the written particulars covered the points mentioned and also perhaps let us know:
The date the current employment began.
Any earlier date upon which employment with a previous employer began which is treated as "continuous" with the current employment.
The employee's hours of work.
Job title or a brief description of the work.

surreysaver

Horace wrote: »

I feel sure that I am correct in thinking that even though the employee hasn't signed the contract, he has accepted it by continuing to work for the business and by doing so, he has agreed to all the terms and conditions of his employment.

And by accepting the pay he effectively agrees to it.

Loop

Sorry for the delay in responding guys.

Ok there was only a draft of the contract, never a finalised one as the employee was disputing it, and he was going to be 'let go of' because he was being very awkward, the company is quite new so an actual contract has gone by the way side, I know this was silly but thats the situation as it stands.

He has been working for the company over a year (the exact date needs to be checked but its about 14 months), even though the company moved apparently it is the same company, so this employee has been in continous employment for this amount of time.

He works 34 hours a week, but very often doesn't do this many hours (he started part time orginally) as he is always requesting short notice time off which has just escalated to this point really. The draft contract said he was a sales assistant. He wanted them to change it to Assistant Manager but this was not agreed by the shop, and he accepted the Sales assistant job title.

The shop is a music shop so often staff are musicians and my boyfriend tries and run a slightly flexible time off system if an important gig is booked for them. However time off and shutting the shop are two totally different things.

He is seeing the employee tommorow to discuss the issues with him, and I am about to draw up a letter to give the said employee outlining the issues.

Just a small point this is a small business a total of 4 paid employees, all working just a few hours except this member of staff we have a problem with.

Thanks so far guys sorry if I have rambled!
:A

Loop

Theres a few issues with just sacking him.

1. He is the only memeber of full time staff
2. Because of the industry we are in, this staff member could possibly taint our reputation, as the shop is a small business and relies on muscicians, and he is well known on the gig circuit.
3. Another member of staff is his best friend.

currently we are thinking the best approach is a verbal warning to the employee and aksing him if he ould prefer to give up the job to make time for his gigs (we beleive he will not jump ship though), followed by a letter outlining shop policies to all staff including him.