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Legal Advice For Employers

Q: I want to dismiss an employee because of his attendance record. He has been absent for a few days per month every month during his employment (18 months). The reasons vary but usually the reason he gives is colds, problems with his partner, car breaking down etc. Can I dismiss?

A: As he has been employed for more than a year he is entitled not to be unfairly dismissed. It is possible for you to dismiss this employee but you will need to follow a fair procedure:

(i) you need to speak to him about the reasons for his absence to make sure there are no underlying reasons for his non-attendance. If you think there may be you will need to seek advice to make sure you do not breach the provisions of the Disability Discrimination Act.

(ii) if the reasons are medical reasons then you will need to get a medical report e.g. from the employee's GP.

(iii) you must have a meeting with the employee at which he is informed what level of attendance you consider to be acceptable and the reasons for this. He should be given a target and told that if he does not meet the target you may need to give him a warning.

(iv) if he does not meet the target, you must have a meeting with him. He must be given the opportunity to explain why he has not met the target. If you still think his attendance is not acceptable he should be given a warning in that he must be told his attendance improve. He should be given a further attendance target and a time scale for monitoring. He should be warned that if he fails to improve he may be dismissed.

(v) if he still fails to improve you should have a final meeting at which he is given the opportunity to explain his non-attendance. If you are not satisfied and conclude that there are good reasons why the business cannot sustain this level of attendance you can dismiss giving him notice. He must be given a right of appeal against the decision to dismiss. (vi) before any meeting he must be informed of his right to be accompanied by a colleague or trade union representative.

Q. The Human Rights Act - how does it affect employers?

gives to employees the following rights in the workplace:

A. It gives to employees of public (and some mixed function) bodies a right to a fair hearing and investigation in any disciplinary or grievance hearing;

protection from discrimination on various grounds, including sexual orientation (e.g. for gays and transsexuals); freedom of assembly and expression; Most employers unless they are carrying out a public function will not be bound by the Act in the workplace. There are potential defences available to employers like in defence of public health, morals, economic well-being - but professional advice should be sought before relying on such defences.

Q. I'm trying to dismiss an employee for gross or serious misconduct. Can I simply dismiss him ?

A. An employer will usually need to carry out a full and fair investigation before taking any decision to dismiss. The employee should be told of the evidence against him before the disciplinary hearing for which he must have time to prepare, and, if he wishes to have a colleague or Trade union representative present. Otherwise you risk an unfair dismissal claim in the employment tribunal. Even where the reason justifies a dismissal, if the procedure is not fair, you may subsequently have to pay (reduced) compensation to the employee.

Q. In what ways do the Minimum Wage Regulations affect my business?

A. The National Minimum Wage Act 1998 Act ("NMW") came into force on 1 April 1999 and provides for a minimum wage of £4.10/hour (as at June 2002). The NMW applies to all 'workers' provided they have reached the school leaving age and ordinarily work in the UK. Unless the individual is a client or customer of any business or undertaking, the individual will be a worker. The NMW is intended to apply to anyone except the genuinely self-employed.

There is no entitlement to NMW for workers aged 16 and 17. Apprentices who are 18 or 19-26 years old and in first year of apprenticeship are not entitled to the minimum wage.

There is also no requirement to pay the NMW to students and trainees who are working on placements under a range of defined training schemes. Unless genuinely self employed, homeworkers are entitled to be paid the NMW.

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