Dean Wilson Laing on contract of Employment
Ian Wilson of local solicitors Dean Wilson LLP answers questions on employment law. This week: Contract of Employment
Q. I own a small business and recently had to dismiss an employee for falsifying his timesheets so that he received more pay than he was properly entitled to receive. He did not appeal against that decision. He is now claiming that I should have paid him a sum in lieu of holidays not taken during the holiday year. Do I have to pay him in view of the fact I dismissed him for dishonesty?
A. It depends what is in his Contract of Employment. In one reported case an employee’s Contract of Employment provided that in the event of him being dismissed for dishonesty he would forfeit any payment in lieu of unused holiday. The Tribunal decided that clause was null and void because the Working Time Regulations provide that any payment in lieu shall be either calculated by way of the usual statutory formula or as set out in an agreement between employer and employee. The Tribunal took the view that because the agreement in that particular case provided for no payment whatsoever it fell foul of the Working Time Regulations because they require “a sum” to be paid and “no sum” is not a sum! In other words the employer still had to pay normal holiday pay despite what was in the Contract of Employment.
Q. Although I dismissed this man for gross misconduct i.e. dishonesty, I still gave him 28 days notice because that is what the Contract of Employment provided. In fact I paid him 28 days in lieu. Did I have to do that?
A. No you did not. If he was dismissed for gross misconduct he should be dismissed with immediate effect and is not entitled to notice or payment in lieu of notice. In fact to give him notice or pay him in lieu of notice could be interpreted by a Tribunal at a later date as an indication that you are not entirely convinced yourself that what he did amounted to gross misconduct. In turn this could cause you credibility problems with a Tribunal. However, in your case it seems that he accepted that he was guilty of gross misconduct and therefore he was not entitled to be paid in lieu but I suspect the prospects of obtaining money back from him are slim!
Ian Wilson is senior partner of 13 partner Brighton solicitors Dean Wilson LLP and specialises in employment law. He was a part-time chairman of the Employment Tribunals for nine years. He is also a board member of The Martlet’s Hospice.
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