Terminating the employment
Dismissal, redundancy, retirement and resignation
Sometimes the employment relationship you have with your personal assistant (PA) will come to an end. This page of the site looks at the most common reasons why this might happen and the associated considerations of notice periods and references.
When a PA leaves your employment – even if you have dismissed them without notice for gross misconduct – it is important to understand that they must receive pay for any annual leave they are entitled to in the current leave year but have not taken.
Both the employee and employer are normally entitled to a minimum period of notice on termination of employment. This will be the amount stated in the contract or the statutory minimum notice period, whichever is longer.
The notice period is the amount of time between the decision to terminate an employment contract and the date that the contract actually ends. This is regardless of who actually makes the decision to terminate, whether it’s the employee because they want to leave or whether it’s because you want the employee to leave.
You can find more on notice and pay during the notice period on the ACAS website.
You may not be obliged to give your personal assistant the statutory minimum notice period if you summarily dismiss them (in cases of gross misconduct).
Gross misconduct is a very serious form of misconduct. Although the law does not define what sorts of actions or behaviours could be described as being gross misconduct, the following acts may be considered as gross misconduct depending on the facts and circumstances:
- Theft or fraud
- Damage to your property or deliberately or knowingly endangering your safety
- Coming to work under the influence of drugs or alcohol
- Verbal abuse to you or any other third party (such as your relatives or friends) or threatening behaviour, whether to you or any third party
- Serious insubordination, including any conduct which undermines your independence or self-determination
- Serious breach of confidentiality.
It is a good idea to give your PA a list of actions that you consider to be gross misconduct at the start of their employment, while making it clear the list is not exhaustive (there could be other acts of gross misconduct but they are not listed here). It is advisable to do this because a PA could do something that is obviously a serious breach of contract but is not on the list.
Occasionally, you will need to ask your PA to leave. That is, you will need to sack or dismiss them. In law there are different conditions that need to be met before you can safely sack or dismiss an employee. For example, when dismissing staff, you must do it fairly.
Dismissal is normally fair if an employer can show that it is for one of the following reasons:
- a reason related to an employee's conduct
- a reason related to an employee's capability or qualifications for the job
- because of a redundancy
- because a statutory duty or restriction prohibited the employment being continued
- some other substantial reason of a kind which justifies the dismissal.
Even if you have a fair reason, the dismissal is only fair if you also act reasonably during the dismissal and disciplinary process.
Further information about how you should go about dismissing someone is given on GOV.UK.
Even if you have acted reasonably, some reasons for dismissal are classed automatically unfair, such as those relating to:
- pregnancy: including all reasons relating to maternity
- family reasons: including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
- representation: including acting as an employee representative
- trade union membership grounds and union recognition
- part-time and fixed-term employees
- pay and working hours: including the Working Time Regulations, annual leave and the National Minimum Wage.
Your employee can complain if they think they have been dismissed unfairly. In most circumstances employees need to have completed a minimum period of service before they can make a complaint to an employment tribunal about an unfair dismissal:
- at least one year's continuous service for employees in employment before 6th April 2012
- two years for employees starting employment on or after 6th April 2012.
However, there is no length of service requirement in relation to automatically unfair grounds (see above).
For more information on dismissal, see the ACAS website.
It is important to get advice if you are thinking about dismissing your personal assistant – ACAS is probably a good starting point.
Sometimes, when circumstances change, you may no longer need your PA. If your needs change and either the type of work carried out by your PA is no longer needed or they are no longer required because you move house, there may be a redundancy situation.
Redundancy has a very specific definition in law. You cannot make someone redundant just because you don’t get on with them. If it is a true redundancy you would not immediately recruit a direct replacement for the personal assistant.
PAs with two years' or more continuous service are entitled to redundancy pay and redundant PA’s have the right to reasonable paid time off to look for other work. In cases where a private employer dies , a PA is still entitled to receive redundancy pay.
If you believe you need to make your PA redundant you should seek advice. ACAS is probably a good starting point. For more information, see the ACAS website.
When an employer dies it is classed as a frustration of contract. This means the employee's contract ends on the day the employer dies. The employee would not be entitled to notice pay but would qualify for a statutory redundancy payment if they had worked for the deceased for at least two years. As such, any redundancy would have to be paid out of the deceased's estate. If there are no funds in the estate, the employee should speak to the relevant people if payments were received from the Government (through direct payments from the Local Authority or NHS personal budgets) as they may cover the cost. Alternatively, they may be able to claim what they are owed from the Government’s insolvency service.
Older workers can voluntarily retire at a time they choose. However, employers cannot force employees to retire or set a retirement age unless it can be objectively justified as what the law terms 'a proportionate means of achieving a legitimate aim'.
You may have justification for wanting to retire a PA if, for example, they no longer have the physical strength to carry out the tasks required of them. It may then be possible to dismiss the PA on the grounds of capability.
Further information on your obligations with regard to retiring employees can be found on the ACAS website.
A resignation means your PA letting you know that they want to finish working for you. There are many reasons why they may want to leave; for example, it could be because they have found another job that pays more or because they are moving away from the area or retiring.
If your PA tells you they want to resign, there are certain things that you should do, for example, ask that they put their resignation in writing.
Find more information on the GOV.UK website.
Whether your PA has resigned, been made redundant or has been dismissed, you may be asked to provide a reference for them. Although you are not obliged to provide a reference, it is quite common in the care sector for offers of employment to be made subject to a satisfactory reference from a previous employer. Indeed, you will probably have asked for a reference from the previous employer of your PA before they started work for you.
Giving references is not as straightforward as it seems. When you give a reference, you have a duty of care to the person/organisation who will receive the reference and a duty of care to your ex-personal assistant. Further advice on providing references is available on GOV.UK website.