When it comes to employment law and employment contracts, it can be difficult to know where you stand sometimes.
And one question we’re often asked is what happens when people don’t have a written contract, can they simply be fired without any notice?
It’s important to remember that anybody that carries out work for you has rights under employment law.
First things first, you need to check whether you have an employment contract with the employee hidden away somewhere.
That might seem obvious, but it might be in a “safe place”, somewhere else other than their personnel file…
As of April 2020, you now legally must give them a written contract on day one of them working for you.
And if you have given them a contract, but they have not signed it, it can also be valid.
Please see our article “One of my employees has not signed their employment contract, what can I do?”
So, Can I Just Fire Someone If They Don’t Have A Written Contract?
No!
As soon as someone starts working for you, there is a verbal contract of employment. The terms of the employment contract are implied. This means they are defined by employment law and case law. Those laws are there to protect the employee, not the employer.
Which means that you will need to follow the notice periods as set out by law when firing someone when they don’t have a written contract.
How much notice do I have to pay them?
You have to give/pay them:
- Under one month’s service – instant notice on both sides
- Over one month’s service – one week’s notice for every completed year of service, up to a maximum of 12 years.
They have to give you
- Under one month’s service – instant notice on both sides
- Over one month’s service – one week’s notice, no matter how long they have worked for you.
The only time you can fire someone without paying notice is either in the first month of them working for you or if they have committed gross misconduct.
Even if they don’t have a written employment contract, you can only fire them for a reason that isn’t illegal.
If they have under two years’ service and no written contract
You can just say to them that it “isn’t working out” and pay them their notice (you always have to pay them their notice unless you go through a gross misconduct disciplinary process). This ease of separation is because there is no protection from unfair dismissal in the first two years of employment (and for those of you who remember, yes, it did use to be only one year before they had protection).
It is better to have several objective and measurable reasons for why they are being dismissed, as this will make the uncomfortable conversation with them much shorter. The more specific you can be, the less they can dispute the statement. For example, saying “you had to be reminded three times in your first week to clean the coffee machine” is better than “you never cleaned the coffee machine voluntarily.”
Given how difficult it is to find good staff, you really should have a ‘good cause’ to fire them, even if they are under two years of service.
This might be anything including:
- Poor performance
- Not following procedure to report absences from work
- Harassment
- Discrimination
- Criminal activity
- Breaking company rules
- Health and safety breaches
If they have over two years’ service and no written contract
You cannot just fire someone, with or without a contract, if they have over two years’ continuous service.
You have three options for parting company:
- Go through a full redundancy process
- Go through a full disciplinary process (for poor behaviour or performance)
- Do a settlement agreement.
If you want any help with employment contracts, notice periods, and any employment or HR issues, Gap HR are here to help.
Give us a call on 01491 598 600 or drop us a line at cw@gaphr.co.uk and we can discuss.
