Ask About... Retail, Hospitality & Leisure
14/08/2012 in Employment, Retail, Hospitality & Leisure By Emma Delap
This month we asked Emma.
We run a couple of Italian restaurants. Last week our Head Chef called in sick, saying he had flu. Later that day we had the Olympic gymnastics on the TV in the staff room. Sitting in the crowd looking healthy and waving at the cameras was none other than the Head Chef! Whilst we know that good head chefs are hard to come by, we’re furious and just feel like sacking him. What do you think we should do?
A - Dismiss him with immediate effect; this is obviously gross misconduct.
B - Check how we have treated other members of staff who have breached our sickness rules and treat him consistently.
C - Give him a written warning or don’t pay him any sick pay to teach him a lesson.
D - Turn a blind eye. The Olympics are a one-off event and we might struggle to find another head chef as good as him.
The correct answer is B.
The first thing to do is check your sickness and absence policy, if you have one, which might make it clear that such conduct is not acceptable and is grounds for disciplinary action. You should also check your disciplinary policy. Even if you don’t have a sickness and absence policy which specifically deals with such issues, the Head Chef’s conduct is likely to be a breach of the implied duty of trust and confidence.
Also, dishonesty and unauthorised absence are potentially gross misconduct offences justifying summary dismissal. However, you should review your disciplinary policy to see if it says what is considered gross misconduct. Also, has your Head Chef ever done anything like this previously? Has he received any written warnings for any other offences? All these factors should be taken into account when you decide what disciplinary action to take.
You should also consider how you have treated other employees in the past who have been dishonest about their absence or breached sickness absence rules. Treating staff differently because some are easier to replace than others can cause problems. You could face unfair dismissal and/or discrimination claims in future if you were to let your Head Chef, off but subsequently dismiss another member of staff for committing a similar offence.
Ultimately this will be a management decision and you will need to consider all of the circumstances. If you decide to discipline the Head Chef, ensure you follow a fair procedure in accordance with any policies you have and the ACAS Code of Practice on Disciplinary and Grievance procedures. Make sure that others receive the same treatment if they commit a similar offence in future. If this is the first time a situation like this has arisen, you may wish to update your policies to be clear, if they are not already, that such conduct will not be tolerated.
As to withholding sick pay, check the Head Chef’s contract and any contractual sickness policy. This should make it clear whether you have the right to do so.
For further information please contact Emma or a member of our employment team.