SCOTLAND, Dissmising employee without written warning?

[Agnes34]

Hey guys, I hope someone can help me here..

I would like to get answer in determining whether one of my employees can be dismissed immediately or receive a final warning letter. If so, what is the minimum improvement period I can use with a final warning letter?

This situation has been ongoing for over a year now. We are working in small Cafeand before I become a manager I sat down with her multiple times and tried to understand why she behaves the way she does. In December 2023, she had a meeting with owners and all the points she needed to improve on were verbally presented to her, including:
- Treating coworkers and owners with respect.
- Helping at all stations, not just the one she is assigned to on a given day.
- Managing her emotions during busy service times (e.g., throwing cutlery into the sink/products in anger, running from station to station in a fit of rage, creating dangerous situations)
- Speaking inappropriately to customers when she is not in a good mood/customer service not to our standards.
- Charging the correct prices for products, as she believes the prices are too high and intentionally charges for cheaper products
- And many more..

There was a temporary improvement, but as we move closer to busier spring/summer period her behavior is deteriorating again. She clearly cannot work under pressure or stress, and she works in a very small, very busy café. At this point, she is bullying another employee and treats her and some of us with terrible disrespect. She delays service when she is in a bad mood. Two of our employees cried a few times because of her behaviour.

As I mentioned above this situation has been ongoing for over a year, and I do not believe she can change. She has been given many chances, and everyone has treated her fairly, with respect, giving her opportunities despite her terrible behavior. Most employees are mentally exhausted to work with her. This is too small space to continue with such a bad atmosphere. She still charges for cheaper products and I have proof of this.

I want to do everything legally, so my question is: Does all this constitute gross misconduct, especially charging lower prices? Despite everything, we thinking to give her one more, but final chance with a final written warning (there was no first written warning).

Additionally for future, can we legally dismiss her without a written warning or with one written warning for the above points?


Regards,
Agnes

[atticus]

while we wait for a Scottish employment law specialist, can I ask how long this person has been employed?

[Agnes34]

Almost 3 years.
Her behavior changed with the change of owners. It was a bit of an organizational mess. The new owners are really cool, but the work structure changed a bit so that now we share stations instead of being assigned to just one. As you might guess, with the previous owners, she had it easy, with the simplest station to manage and no one ever pointed out if she wasn't doing something.

I have the impression that this whole "circus" is because she suddenly has to work harder, which is fair to others and considering that the café has become much busier than it used to be.

[ULA]

Although not an expert in Scottish Employment law many of the aspects are the same as in the English and Welsh Tribunals.

With nearly 3 years service you need to ensure that any process you undertake is fair and reasonable should there ultimately be a dismissal. There has been no written warnings from what I can see from your post, there appears to be no recorded performance improvement plan put in place, despite discussing this with her, which could be monitored and assessed. In short, if you dismissed her now you would potentially be facing a claim for unfair dismissal.

Without any formally recorded meetings or a written warning on record with regard to her conduct / performance then, my view is,that you are going to have to start the process from the beginning. This will start with you initiating a conversation about her conduct /performance.

I am presuming that as a small café, you do you have job descriptions in place or many of if any policies and procedures that may be relevant to managing this situation?

[Agnes34]

Also, as I mentioned we have new owners and we signed new contracts with them in late December 2022 which means in theory she is working for present employer for just over a year.
Does it change anything?

[ULA]

If the new owners purchased the business from the previous owners then this is covered by Transfer of Undertakings (Protection of Employment) Regulations 2006 or TUPE as it is know. Staff move across to the business owner on their existing terms and conditions of employment and continuity of employment is preserved.

So no it does not change anything as the new contracts should have been on existing terms just in the name of the new employer.

[Agnes34]

Ok, that all make sense now.
My last question, is intentionally charging for cheaper products as in her opinion prices are too high constitue as gross misconduct?
Can we give her first and final warning letter because of that and bullying other employee?

Thank you for your answers!

[ULA]

What proof do you have of these allegations such as the charging cheaper prices, days approx times , witnessed by and on the bullying do you have statements from the members of staff to support this?

You need to have all of this evidence together and then invite her to a disciplinary meeting, stating who will chair it, what the allegations are, provide the supporting documentation you will rely on to make any decision, give her the right to be accompanied and set out what disciplinary action may be taken. You need to leave about 5 days from sending her the letter until the hearing date which should be also in the letter.

[Agnes34]

Yes, we do have statements from employees about the bullying, a few photos of undercharging on the till with a note from a witness. There isn’t much evidence as we have just started collecting it. We are working on a warning letter now that will include all the evidence, and we are thinking of reducing her hours. Can we do that based on all this, or does she need to agree to it first?

[ULA]

You cannot work on a warning letter in advance of holding a disciplinary meeting, you must follow the process as set out in my post #8. At this stage you have no idea what evidence / defence she will come to the disciplinary meeting, which will need to factored into any consideration of what action may be taken.

Who would you be proposing does the disciplinary hearing? This must be someone who is senior enough to make a disciplinary outcome decision but has not been involved in any discussion about this, is neutral and can come to an objective view.

What does any policy you have on disciplinary procedures state about demotion or reduction in hours as being a form of discipline? The latter may cause you an issue in terms of a change to contract without consultation or unlawful deduction of wages claims.

[Agnes34]

Sorry, I think I misspoke in my previous posts. We don't want disciplinary dismissal I just wanted to find out if gross misconduct is sufficient to dismiss someone in the usual way. I was always thinking disciplinary dismissal has always been the last resort before a "regular" dismissal...? Am I wrong then?
Since we don't have previous documented conversations, we wanted to reduce her hours as a way to show that the situation is serious and we take it serious.
We would like to give her a warning letter to start the process of legally dismissing her in the future if there is still no improvement, as we know we currently have too little evidence to dismiss her now.

To summarize: No one wants to work with her at this point. Two people have already threatened to leave if the situation with her doesn't change. These are good employees and it will be disaster for the business to loose them over her. That's why we wanted to cut her hours in the hope that she might leave on her own, but I'm not sure if what we have on her is enough of a basis for cutting hours?

[ULA]

Regardless of what level of disciplinary action you want take e.g. first written warning up to gross misconduct 9r anything in between) then a disciplinary process has to be gone through. A gross misconduct dismissal is either for a one-time event that is so serious it warrants this level of action or, there have been a series of events, of a similar nature for which previous warning are still on file and active.

My suggestion to start tackling this, is to instigate a disciplinary process and depending on her mitigating evidence, some potential form of disciplinary action that stays on file for a 12 month period, or whatever period is stated on your relevant policy. Any letter recording the disciplinary action should state that any further incidents could result in further disciplinary action which may include dismissal. That means if there is further conduct of the same nature then you have "set the scene" for what may happen.

If she is contracted to a set number of hours, then you will need to go through a consultation process with her to reduce these and you will need to justify this on business grounds. From what you have said the café is busier and it will therefore be hard to say there is a need to reduce her hours in my view. Not being able to do this, could lead to a breach of contract claim.

[Agnes34]

Thank you for your help ULA ☺️