Is it legal to sack an employee twice?
We have an employee who started November 1, 2010. She was not suited for the job and was dismissed on July 1, 2011 with due notice on the grounds of capability. Her contractual notice period was six months.
The other complication is that on August 1, 2011, she was suspended on full pay to enable the club to investigate a possible case of gross misconduct.
My questions are:
1. Is it possible for a dismissed employee to be dismissed again albeit for a different offence?
2. If the answer is yes and the employee has over a year’s service, could she take the club to an employment tribunal?
3. Could she present two claims of unfair dismissal to the Employment Tribunal?
4. If the employee is dismissed for gross misconduct which would deprive the employee of the one year service requirement, can she take her case to an employment tribunal?
If an employee is dismissed for capability and then subsequently commits an act of gross misconduct, such as theft, then there is no doubt a second dismissal can go ahead. This, therefore, answers your first question. If an employee has been dismissed and then reoffends in some way, a further dismissal is still possible. At the time the employee was dismissed for capability she had been employed for over one year and therefore could take her case to an employment tribunal. (The one year’s service is the period from the start date to the expiry of her contractual notice period.)
If, however, the same employee who has been suspended on full pay is dismissed for gross misconduct, she will not have a year’s service. The questions that arise are whether the employee can take her case of unfair dismissal (on the grounds of capability) to an employment tribunal, or whether her second dismissal prevents her taking any case to a tribunal.
The law is clear and unambiguous. Where an employee is dismissed while he or she is working out their notice, the date of the ending of their employment is brought forward from the date on which their notice would have expired to the date on which they were summarily dismissed, even if the effect of that is to leave the employee without the necessary period of continuous service to present a complaint of unfair dismissal.