Ex employee-unfair dismissal

ceridwen

I dont think the sarcastic comments to O.P. are helpful myself. My initial gut reaction to O.P. is that they are telling the truth. Having read further posts now - that is still my analysis.

Obviously we are only hearing one side of the story here - but instinct tells me it is the truth.

Believe me - I'm normally one of the first to be a bit cynical about employers actions:rolleyes: - but I dont think thats called for in this case.

BASSETT

She claims I sacked her as she was pregnant and she was forced to lift heavy crates which is rubbish as hubby and I done this.
I got the police to her partner before all this, i.e when she picked up her last wage, and over a month later I get a solicitors letter.
I have not employed anyone else and not likely to either.
But your right, I should not have been so soft and just brought her in.
Last year hubby discovered on our old epos system that she was cancelling sales amounting to approx £30 a day and she tried to blame it on him! He warned her then verbally and things were ok for a while.
This epos system broke strangely enough.
I found £120 rolled up in an old till through the back about a month after she left too. I didn`t put it there and certainly hubby didn`t.
Now I understand why some shopkeepers keep their family in the shop and don`t employ anybody.

Zazen999

BASSETT wrote: »

She claims I sacked her as she was pregnant and she was forced to lift heavy crates which is rubbish as hubby and I done this.
I got the police to her partner before all this, i.e when she picked up her last wage, and over a month later I get a solicitors letter.
I have not employed anyone else and not likely to either.
But your right, I should not have been so soft and just brought her in.
Last year hubby discovered on our old epos system that she was cancelling sales amounting to approx £30 a day and she tried to blame it on him! He warned her then verbally and things were ok for a while.
This epos system broke strangely enough.
I found £120 rolled up in an old till through the back about a month after she left too. I didn`t put it there and certainly hubby didn`t.

Hi

Did you actually know she was pregnant [ie had she officially informed you that she was having a baby] prior to you and your accountant having a conversation about having to let her go?

It is kind of important to your case, if you really want to defend this.

BASSETT

Oh yes I knew straight away, she`d already had 2 miscarriages whilst working for me so she told me when she found out.
She was over 16wks when she left.
She`d been working for me for under a year.

[Deleted User]

BASSETT wrote: »

Her multiple medical problems were recurrent miscarriages, so if I was going to sack her for being pregnant I could have done it twice before.

Emploees who have misscarriges are entittled to some of the same rights as pregnant employees, including time off to recover and for medical appointments.
Depending on what stage she had the misscarrige she would also be entiled to full maternity rights.


I let her change her hours, was sympathetic towards her medical state, changed my hours to accommodate her hospital appointments, gave her the lottery tickets frequently, bonus at christmas and I`m gobsmacked that she`s doing this.
Takings are up at least £100 daily, she has been my only employee, family business otherwise.
I considered bringing her in, showing cctv of friends etc and confronting but thought it may aggravate her condition. I work in for NHS as well as the shop so I understand stress factors etc.
Her partner threatened my hubby when she came to pick up her money so we contacted the police who were going to have a chat with him.
Also I did not sack her, I told her I had to let her go on advice from my accountant which is the truth.

'letting her go' & 'sacking her' are one and the same if after then she was not working for you.

My solicitor has responded to hers with details of this, plus difference in turnover and cctv images etc and asked for an explanation but have not received this yet.

Study your CCTV and do full stock take, if you find anything then good luck, you may be ok as that is gross missconduct, but still should have followed procedure.


Probably my own fault for being too trusting and it`s a harsh lesson learned.

Indeed hard lesson, being an employer is not easy, employment law is vast and complicated.
Some links to help you out in the future so you know what you should be doing. It's important you follow their guidance or you may end up paying her compensation even if you are proved right because you did not follow the law.

http://www.acas.org.uk

http://www.businesslink.gov.uk

http://www.berr.gov.uk

Zazen999

BASSETT wrote: »

Oh yes I knew straight away, she`d already had 2 miscarriages whilst working for me so she told me when she found out.
She was over 16wks when she left.
She`d been working for me for under a year.

How long was it between her telling you and your accountant having this conversation with you.

Was the accountant aware that she was pregnant?

Was this conversation a conversation only or is there anything to back up the accountant's analysis of the business situation? ie the account figures were run on the xth of y and they show quite clearly that we cannot finance the member of staff?

[Deleted User]

BASSETT wrote: »

Oh yes I knew straight away, she`d already had 2 miscarriages whilst working for me so she told me when she found out.
She was over 16wks when she left.
She`d been working for me for under a year.

As she is claiming dismissal due to pregnancy that would be 'automatically unfair' so it does not matter how long she has been working for you. She will have been advised to go this route as otherwise she would have had been employed a year.

BASSETT

she would have been about 12wks when I saw my accountant, I also got pulled in by my business manager who has graphs to show decline in turnover, and the bank charges when I couldn`t pay my suppliers.
I didn`t tell my accountant she was pregnant, I was more concerned with my business and my monetary situation.

zzzLazyDaisy

ssOkay, just to clear up a couple of points -

1 The statutory disciplinary procedure mentioned above was repealed on 6th April this year. It is no longer an automatic unfair dismissal for failing to follow a disciplinary procedure (although for any employee with more than one year's service, failure to follow a procedure before dismissing them would still normally amount to an unfair dismissal)

2 the employee had less than one year's service - if you add on her notice period, does it still come to less than one year? If so, then the fact that you did not follow proper disciplinary procedures will not go against you.

3 You seem to be drawing a distinction between 'sacking her' and 'letting her go'. You terminated her employment, for whatever reason. That is a dismissal. Whether the dismissal was unfair or not depends on the circumstances.

4 Redundancy is a fair reason for dismissal. If her job ceased to exist (because you could no longer afford her) and you have not replaced her, and have no plans to replace her, then that is a redundancy situation. She would not be entitled to a redundancy payment because she has less than two years service. However, these are important fact because they show what the REAL reason for the dismissal was, from your point of view.

5 IF you knew she was pregnant and IF that was a factor in your decision to dismiss her, then that would be both an unfair dismissal, and sex discrimination. These claims are exceptions to the one year rule, and since she did not have a year's service, this is the only claim she can pursue. It will be for you to persuade the tribunal that her pregnancy was not a factor in your decision, so any evidence that you have been sympathetic and supportive to pregnant employees (either her, or any other employee) would be useful.

6 It is very common for ex-employees to start IT proceedings in the hope that the employer will agree to give them an out-of-court settlement, even if they know they don't really have a case. It is unlikely they will be able to afford solicitors fees for running the case to tribunal as this would be very expensive and even if she wins her claim in tribunal it is unlikely in the extreme that you would be ordered to pay her costs.

7 For future reference, you must have procedures in place for dealing with disciplinary situations - ACAS will help you with this.

Zazen999

BASSETT wrote: »

she would have been about 12wks when I saw my accountant, I also got pulled in by my business manager who has graphs to show decline in turnover, and the bank charges when I couldn`t pay my suppliers.
I didn`t tell my accountant she was pregnant, I was more concerned with my business and my monetary situation.

Ok, what you need is a timeline, to show when the business started failing, what happened when and when you decided that the business couldn't carry on paying her. Also include what you did what and when you suspected money being taken and when you saw the CCTV. Document everything.

So, if your business hadn't been losing money [the reason for you letting her go], you would have pursued a disciplinary action against her after finding out that it was likely that she was taking from the till [as suggested by the CCTV], and that your customers were complaining and avoiding the shop due to her rudeness/laziness.

Your case is strengthened by the evidence that you had not sacked her during the other 2 times that she had been pregnant, or within the first 12 weeks of her being pregnant this time around.

Also, if you are saying that she was not required to carry heavy crates, you need to counter that claim in your response.

It was purely a business decision that resulted in your having to let her go, backed up by your Business Manager and Accountant's reports on the business and which you have clear evidence to back this up.