Payment for notice period question

Savvy_Sue

Scenario: new employee (well under 6 months, still on probation FWIW) phones sick one day, and then phones the next day and says "I can't work for the rest of the week, can't get childcare."

After a brief discussion about whether this situation is likely to be a one-off or has the possibility to recur, and an admission that it is likely to recur, it is agreed that the employer will dismiss this person in the hope of avoiding a sanction from the Job Centre. The employee will do no more work.

So, does the employer have to pay a week's notice? Presumably if the person had resigned, with immediate effect, the answer would be no. But by agreeing to dismiss, I'm not so sure!

I know in either case that accrued leave must be paid.

getmore4less

Did the employee agree to terminate without notice, get it in writing, don't think you need to pay then

If they are expecting the notice pay then I think you need to pay it, PILON or garden leave.

Savvy_Sue

Thanks, I'd have to check whether the agreement was to terminate without notice, although it was pretty clear that the employee wasn't going to work any notice period.

SarEl

Ermmm - of course if this person then goes to a lawyer and makes a claim that they were dismissed for reason relating to parental responsibility, which requires no continuous service, then they would have a pretty decent case against you, and win or loose it will cost you a lot of money! Your "generousity" could cost you dearly, especially since a dismissal can still be sanctioned - and the simplest way around that sanction is to sue you for unfair dismissal, given that taking legal action against the employer for this would usually be seen as evidence that the person is not intentionally unemployed.The entire agreement is potentially a disaster waiting to happen.

The correct thing to do is to ask the person to resign stating the breakdown of their childcare arrangements as the reason. Assuming their children are within the rleavnt categories in relation to parental responsibilities, this reason, supported by the employer agreeing that their work was fine and that childcare issues was the reason they left, is the least likely to land anyone in hot water

Uncertain

SarEl wrote: »

Ermmm - of course if this person then goes to a lawyer and makes a claim that they were dismissed for reason relating to parental responsibility, which requires no continuous service, then they would have a pretty decent case against you, and win or loose it will cost you a lot of money! Your "generousity" could cost you dearly, especially since a dismissal can still be sanctioned - and the simplest way around that sanction is to sue you for unfair dismissal, given that taking legal action against the employer for this would usually be seen as evidence that the person is not intentionally unemployed.The entire agreement is potentially a disaster waiting to happen.

The correct thing to do is to ask the person to resign stating the breakdown of their childcare arrangements as the reason. Assuming their children are within the rleavnt categories in relation to parental responsibilities, this reason, supported by the employer agreeing that their work was fine and that childcare issues was the reason they left, is the least likely to land anyone in hot water

But surely, if the person has their wits about them and / or has spoken to a lawyer they will just refuse to resign The firm is then back to square one having to either put up with it or dismiss them with the substantial risk of a claim due to childcare responsibilities.

It seems to me this all hinges around the wooly definition of "short periods of unpaid leave". Four days in one lump is arguable and not clear cut.

The safer option would be to find fault with their work over the next few weeks......... (can't believe I suggested that!)

kittycatsam

Hi,

This link has info about notice on dismissal. If the employee has worked for over one calendar month they are entitled to a weeks pay as notice

http://www.adviceguide.org.uk/index/e_notice_of_dismissal.pdf

Savvy_Sue

SarEl wrote: »

Ermmm - of course if this person then goes to a lawyer and makes a claim that they were dismissed for reason relating to parental responsibility, which requires no continuous service, then they would have a pretty decent case against you, and win or loose it will cost you a lot of money! Your "generousity" could cost you dearly, especially since a dismissal can still be sanctioned - and the simplest way around that sanction is to sue you for unfair dismissal, given that taking legal action against the employer for this would usually be seen as evidence that the person is not intentionally unemployed.The entire agreement is potentially a disaster waiting to happen.

I thought you might say that. However, the reason for dismissal is the employee's failure to attend work, for a week, with no notice. You've said before, I'm sure, that the provision for dependents' leave is for an emergency, not a situation going on for a week (or potentially more).

SarEl wrote: »

The correct thing to do is to ask the person to resign stating the breakdown of their childcare arrangements as the reason. Assuming their children are within the rleavnt categories in relation to parental responsibilities, this reason, supported by the employer agreeing that their work was fine and that childcare issues was the reason they left, is the least likely to land anyone in hot water

Sounds like a plan ...

Uncertain wrote: »

But surely, if the person has their wits about them and / or has spoken to a lawyer they will just refuse to resign The firm is then back to square one having to either put up with it or dismiss them with the substantial risk of a claim due to childcare responsibilities.

It seems to me this all hinges around the wooly definition of "short periods of unpaid leave". Four days in one lump is arguable and not clear cut.

It may also be worth pointing out that the employee does 4 days pw, over 7 days. So that "I can't work next week" was not "for the next 4 days" but "for the next week".

Uncertain wrote: »

The safer option would be to find fault with their work over the next few weeks......... (can't believe I suggested that!)

Hard to find fault with their work if they're not actually at work!

BTW, for the record, this is NOT a situation I'm responsible for. I've just been asked the question!!! If I was responsible for it, I'd have asked the question before making any suggestions ...

Savvy_Sue

SarEl wrote: »

Assuming their children are within the rleavnt categories in relation to parental responsibilities,

Does anyone know if that's under 6, under 12 or some other number atm? AFAIK there's no special needs involved.

Uncertain

Savvy_Sue wrote: »

I thought you might say that. However, the reason for dismissal is the employee's failure to attend work, for a week, with no notice. You've said before, I'm sure, that the provision for dependents' leave is for an emergency, not a situation going on for a week (or potentially more).

By definition an emergency situation will crop up without notice! I agree four days is borderline but what might happen next week (which at best is a guess) is irrelevant.

I think the point here (and as I understand SarEl) is that this gives enough of a grey area for a claim to be well worth a go. This would have two effects; it would more or less guarantee that they would be able to claim JSA and it would cost your firm money to either fight or settle the claim.

getmore4less

Failure to have childcare in place is not an emergency.

Failure of the childcare(say childminder is sick) is, but no backup is not an emergency after the first event.

silvercar

Better for the employer to give the employee a week's notice. Then the employee can use the emergency leave for no childcare excuse and take the time off unpaid.