Legal questions and answers
Q An employee’s mother has been involved in a serious accident. She is at
home and needs constant care. Is the employee allowed to take unlimited time
off work in order to look after her? And does the employer have to pay the
employee during any leave of absence?
A An employee is entitled to time off to deal with an emergency
involving a dependent. There are a number of people who are classed as
dependents – a husband, wife, partner, child or parent, or someone living with
the employee as part of their family.
While statutory guidance gives various examples of an ’emergency’, such as
where a dependent falls ill or is involved in an accident or is assaulted,
ultimately, common sense should be applied to individual circumstances. In this
particular situation, while some leave of absence may be appropriate, (in order
to arrange for the care of the mother, for instance) unlimited time off work
would not be granted in an ’emergency’.
An employee who takes time off to deal with an emergency is not
automatically entitled to pay. However, some employers do continue to pay while
an employee is off work as a matter of company policy, which should be set out
in the contract of employment or staff handbook.
Q An employee who has been with the company for a number of years has lately
been failing to produce an adequate standard of work. No-one has mentioned it
to the employee, although he is probably aware he is performing poorly. Can the
employer simply dismiss him?
A An employer must follow a sensible procedure before deciding on
what disciplinary action to take, which may ultimately be dismissal.
Where an employee has more than one year’s continuous service, they have a
right not to be unfairly dismissed. To terminate an employee’s contract fairly,
the employer must show it has terminated the contract for a ‘fair’ reason and
that in doing so, has carried out a ‘fair’ procedure.
While poor performance would be a fair reason for dismissal, the employer
must nevertheless carry out a fair procedure. In the given circumstance, the employee
must be informed of the employer’s concern and given an adequate opportunity to
improve. In addition, if the poor performance is a recent development, the employer
should find out if there is a reason behind it.
An employer should always follow a full disciplinary procedure. A minimum
procedure would provide for a verbal warning, written warning and a final
written warning, before dismissal. At each stage he should be invited to a
meeting to discuss an employer’s concerns and allow him the opportunity to
respond.
Targets in performance should be agreed, to be met within a specified
timeframe. The employee must be allowed to bring a colleague or a trade union
representative to the meeting, if they wish. The employee should also be given
the opportunity to appeal any decision of the employer at each stage.
Only once the full procedure has been followed, would it be reasonable for
an employer to terminate his contract.
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