Q&A

Can an employer withdraw a termination notice issued by mistake?

In CF Capital plc v Willoughby, the Court of Appeal considered the issue of whether an employer could retract a notice of termination issued as a result of a misunderstanding and decided that it could not. This case confirms that an employer’s unambiguous notice of termination can rarely be withdrawn and highlights the serious consequences for employers of proceeding on the basis of a misunderstanding with employees.

We have an employee who has just been sent to prison, what do we do?

The fact that your employee has been sent to prison does not mean he isn’t still your employee. You will have to terminate the employment should you wish. You would be able to justify this on the basis that you need the work done and the employee is not available. Technically this would be a dismissal for ‘some other substantial reason’.  An alternative may be to look at frustration of contract.  The law could the employment contract as “frustrated”; by the event of the employee’s imprisonment meaning he is unable to carry out his contractual duties. This is not considered a “dismissal” in law, and therefore the employee is prevented from bringing a claim of unfair dismissal.

One of my employees has requested to take on a second job and I think that in doing both jobs they are likely to exceed working 48 hours per week.  Do I have to get them to sign an opt out form?

You would be responsible for getting an opt out form signed.  All employers are responsible for ensuring compliance with the Working Time Regulations even if part of the work that is being undertaken is being done for another employer.  The Working Time Regulations are essentially health and safety provisions and therefore there is an overriding obligation on you to ensure the safety and wellbeing of your employees.

One of my employees has requested to take on a second job and I think that in doing both jobs they are likely to exceed working 48 hours per week.  Do I have to get them to sign an opt out form?

You would be responsible for getting an opt out form signed.  All employers are responsible for ensuring compliance with the Working Time Regulations even if part of the work that is being undertaken is being done for another employer.  The Working Time Regulations are essentially health and safety provisions and therefore there is an overriding obligation on you to ensure the safety and wellbeing of your employees.

I have an employee who has been sick for over one month now, how long do I need to keep paying them?

The law requires you to pay the employee Statutory Sick Pay (SSP) for 28 weeks, providing they meet the qualifying criteria, but this is the minimum you need to do. You should check your contract of employment to see what that says you will pay an employee when they are off sick and if that period is exhausted I would let them know that their pay will reduce to SSP in their next salary payment. Incidentally, given the length of the absence, you should also check your policy on seeking medical advice about if and when they may be able fit to return to work.

Q: I am reviewing my contract of employment and considering introducing a non-solicitation clause for senior employees, are they legal?

Q: When a woman goes into labour but does not have the baby until the following day can we insist that her husband takes the time as annual leave for the day she was in labour rather than paternity leave as he has suggested?

Q: I have dismissed an employee and then paid him in lieu of his notice (PILON), but he says I also have to pay him his bonus, that would have fallen due during his notice period.  Do I have to pay it?

Q. I’ve just discovered, to my absolute horror, that I’ve been overpaying an employee. What’s the legal position? Can I get my money back from him?

Q. Help, I am panicking! I was planning to retire one of my employees next week, but heard on the news this is will be illegal. Is that right?

Q. Do I have to give my employees an additional day’s leave in light of the Royal Wedding on 29th April?

Q. We gave an employee additional responsibilities with the understanding that if successful at the end of a performance review process there would be a backdated pay rise. However, half way through the process they have resigned, they are working their notice and are still undertaking the extra responsibilities; but now they are leaving I don’t really want to pay them any extra. Am I obliged to honour this agreement?

Q. I have two employees who are in their probationary period and are not shaping up. They have been spoken to and one has not changed his attitude at all. Do I have to follow the same disciplinary procedure for dismissing them as permanent employees?

Q. We have an employee whose baby is due on the 29 October, but has 19 days of holiday left to take. She would like to take all of it before she goes on maternity leave, but wants to keep working for as long as she can. She would like to go on leave mid October. Is this OK?

Q. If an employee is struggling, can we demote rather than dismiss, and should we give them notice? We have an employee who is on a final warning relating to their capability. A further incident has arisen, also linked to their capability, but the next step would have be to dismiss them. I would like to give the person one final opportunity to work it out and believe that we may have promoted them beyond their capability. Instead of dismissing, can I demote them and do I have to give them notice?

Q. An employee has resigned giving us three months notice. We prefer he leaves in 4 weeks as he is starting up a business in competition. Can we respond to his resignation letter stating that we do not require him to work 3 months, and that he will finish in 4 weeks time? His contract states that he only has to give 4 week’s notice.

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