Thread: Wrongfully Dismissed ??

Hi

Long story short my partner was asked if she had a minute for quick chat with her boss. She was basically told she wasn't doing her job as he thought she should and terminated her employement using a brake clause in her contract (minimum of 2 weeks notice or 1 week for every years service)

Questions are :

1.) He was brought in to replace previous Facilities manager (6 weeks ago) and has never spoken to my partner or enquired about my partners job. She was doing her job as per her original instructions. He also did not know what her working hours were

2.)She was told that they were using a Break clause in her contract and would pay her until the end of month however, Yesterday we recieved a letter from the company in question and there is no mention of using a break clause the reasons stated in letter were not mentioned in meeting ?
The reasons they are now stating are poor attendance (? had maybe 2 days off ill) and poor time keeping (was 30-45 mins early every day due to parking problems if she was later) and that she was not proactive ?? She was told she would be paid until end of month and she was not required to work her notice.

3.)She was escorted from meeting once it finished to her office and watched while she cleared her desk and then escorted from premises but in the letter we recieved it states that she "left during the meeting and have not returned"

4.)When my partner was asked if she had a minute for a quick chat the company had already employed/hired a temp to cover the rest of the day. They had made all arrangements etc and temp was there onsite before meeting had taken place or my partner was informed of any problem. Is this normal practice ?

Firstly im sure this is not right, Never been spoken to about doing job wrong etc, No previous issues or warning's etc.
Also can someone please confirm a law/rule that i have always though exsisted please, Is it true that for every 4 hours worked you are entitled to 30 mins break ?

Basically she worked 9 hours a day and was only given 30 mins as a break, it was originally 1 hour but they then changed it to 30 mins as her last 30 mins of working day were no longer required !

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Originally Posted by majik

Hi

Questions are :

1.) He was brought in to replace previous Facilities manager (6 weeks ago) and has never spoken to my partner or enquired about my partners job. She was doing her job as per her original instructions. He also did not know what her working hours were

2.)She was told that they were using a Break clause in her contract and would pay her until the end of month however, Yesterday we recieved a letter from the company in question and there is no mention of using a break clause the reasons stated in letter were not mentioned in meeting ?
The reasons they are now stating are poor attendance (? had maybe 2 days off ill) and poor time keeping (was 30-45 mins early every day due to parking problems if she was later) and that she was not proactive ?? She was told she would be paid until end of month and she was not required to work her notice.

What is a break clause and more to the point what does it say in her contract? It sounds like a clause which says "the company reserves the right to dismiss you unfairly and you hereby agree to waive your employment rights in respect of any claim for unfair dismissal"

3.)She was escorted from meeting once it finished to her office and watched while she cleared her desk and then escorted from premises but in the letter we recieved it states that she "left during the meeting and have not returned"

4.)When my partner was asked if she had a minute for a quick chat the company had already employed/hired a temp to cover the rest of the day. They had made all arrangements etc and temp was there onsite before meeting had taken place or my partner was informed of any problem. Is this normal practice?

Definitely not - for all of your questions, the answer would be that the company has failed to apply the statutory minimum disciplinary procedures required by law. What your partner can do about it however depends very much on how long she has worked there and clarification of exactly what this 'break clause' is all about.

Firstly im sure this is not right, Never been spoken to about doing job wrong etc, No previous issues or warning's etc.
Also can someone please confirm a law/rule that i have always though exsisted please, Is it true that for every 4 hours worked you are entitled to 30 mins break ?

Sadly not true - you are entitled to an unpaid break of not less than 20 minutes if you are working a shift of six hours or more. Only if under 18 must you have 30 minutes when working four and a half hours or more.

Basically she worked 9 hours a day and was only given 30 mins as a break, it was originally 1 hour but they then changed it to 30 mins as her last 30 mins of working day were no longer required !

That would be in order - in a 9 hour shift the minimum permitted is only 20 minutes (although she should not be penalised for 'comfort' breaks

..

The break clause mention basically states that the can terminate yur contract at anytime provided a minimum of 2 weeks notice is given or 1 week for every 1 years service. It was refered top as a break clause by the Facilities Manager but there is now mention of "Break Clause " in her contract it just states " We can terminate yur contract at anytime provided a minimum of 2 weeks notice is given or 1 week for every 1 years service.

It was a Temp to Perm contract, She temped until end of March and was made permanant on 1st of April subject to 1 month probation. Begining of May she recieved letter stating that she had passed probation and was now Permanant.

Also she worked for a Solicitors which i guess makes it even harder to do anything about.

Hope this helps you a little more, Bit that annoys me is she had a holiday booked and had to show a Temp what to do etc. New facilities manger seems to fink that instead of employing a Hospitality and Events Manager (My Partners job title) is far cheaper to employe a temp whenever they have functions (12 a year atm as business only started doing them in January 2008)

The temp to perm arrangment makes this rather messy. If she worked at the solicitors for a total unbroken period of at least 12 months then it is possible that she could bring a claim for unfair dismissal. It would all depend on the nature of the contract in place with the agency when she was originally placed, and any T&Cs received from the solicitor prior to and since she moved to a 'permanent' contract. Without having at least 12 months employment however your partner will struggle, as essentially she may be dismissed for any reason with few rights available (unless she can make a case for discrimination).

I would question whether the break clause holds water in cases where she has been employed for more than a year, as it would seem that rights afforded by the Employment Act would at that time supercede any right to dismiss without reason.

Originally Posted by Sidewinder

The temp to perm arrangment makes this rather messy.
Well it was originally Temp to Perm as they were not sure if they had enough business to warrent opening up the suites full time. (Meeting rooms for client meetings and external functions) Withing a month they realised that they were definetly worth while having them opened permanantly and so took her on full time.

If she worked at the solicitors for a total unbroken period of at least 12 months then it is possible that she could bring a claim for unfair dismissal. It would all depend on the nature of the contract in place with the agency when she was originally placed, and any T&Cs received from the solicitor prior to and since she moved to a 'permanent' contract. Without having at least 12 months employment however your partner will struggle, as essentially she may be dismissed for any reason with few rights available (unless she can make a case for discrimination).

(No T&C's from agency as there was no Job Description as such just basically do what your asked etc.) Agency was Reed who just kinda said it near you see what its like !! all T&C's were provided by solictors office but there really is no mention of real job description or anything. I will try and scan the T&C's tonight and post them up for you to read etc.

I would question whether the break clause holds water in cases where she has been employed for more than a year, as it would seem that rights afforded by the Employment Act would at that time supercede any right to dismiss without reason.

Bit that worries me is that what was said at the meeting is not what is said in letter, Partner was escorted from meeting room to office to clear her desk and them from premise's. But letter states that she walked out before meeting had finished and has since not returned. It was only my partner and her FM present at meeting too, No minutes were taken nore was she given the option of having someone present, She was led to believe that it was just a chat and was sacked !!

As i have mentioned it was only reffered to as a break clause by the FM, when i questioned him about this clause the response i got was " This is a solicitor's - It will be in their somewhere" He has also dismissed at least another 2 members of staff for " not being pro-active" Again no warnings just terminated their and then.

Originally Posted by majik

Bit that worries me is that what was said at the meeting is not what is said in letter, Partner was escorted from meeting room to office to clear her desk and them from premise's. But letter states that she walked out before meeting had finished and has since not returned. It was only my partner and her FM present at meeting too, No minutes were taken nore was she given the option of having someone present, She was led to believe that it was just a chat and was sacked !!

As i have mentioned it was only reffered to as a break clause by the FM, when i questioned him about this clause the response i got was " This is a solicitor's - It will be in their somewhere" He has also dismissed at least another 2 members of staff for " not being pro-active" Again no warnings just terminated their and then.

The problem is that whilst what has happened is a clear breach of the statutory disciplinary procedures - no advanced notice, no witness present, false statements in the letter etc - this is only relevant if she has been working there for 12 months or more. If she hasn't then however wrong their procedures there is not much that she can do about it.

Has she worked there for a year? If so then she needs to appeal the dismissal on procedural grounds and may have grounds to take them to a Tribunal. If not then whilst an appeal should be lodged anyway, she can do little about how the dismissal was carried out, unfair as it may be.

No she hasn't been there 12 months only about 13 weeks,
Have sent a letter back to HR manger who wrote our letter and informed her that what was written in our letter was not correct and that we do not agree with it etc and that we do not believe that the correct procedure was carried out.

When you say appeal you mean to her termination correct ? If so how would we go about that as there has never been any mention to any form of appeal as of yet ?

Yet another breach of correct procedure then....

For any dismissal the employee should be given the right to appeal the decision. However, with only 13 weeks service basically this employer (shamefully for a solicitor) has completely disregarded procedure safe in the knowledge that there is little or nothing that your partner can do about it.

From the ACAS website.

Unfair dismissal

Where it is the employer who terminates the contract this is a dismissal. For a dismissal to be fair the employer must have acted reasonably taking account of all the circumstances. Any employer contemplating dismissal should ask whether:

• there is sufficient reason for dismissal on the grounds of capability, conduct, redundancy, or some other substantial reason or dismissal is necessary to comply with the law

• reasonable alternatives to dismissal were considered

• the dismissal is consistent with previous action by the employer and any disciplinary procedure

• the dismissal is fair, taking all relevant factors known at the time into account.

• they have, as a minimum, followed the statutory disciplinary and dismissal procedure. This involves the employer informing the employee in writing about the alleged offence; a meeting to discuss the issue; and, where necessary, an appeal

Employees with one year's qualifying service who think they have been unfairly dismissed may make a complaint to an employment tribunal.

So in that case, despite the fact that your partner has almost certainly been unfairly dismissed (and in fact, failure to adopt correct procedure is considered 'automatically unfair') she has no legal redress unless she can make a case for discrimination, in which case the 12 month rule does not apply.

Please find attached my partners contract.

Break clause is number 8 !!

Anyone offer any help ?

Why referred to as a 'break clause' I don't know as that is a standard clause relating to notice requirements and it is perfectly in order.

Regards help on this, although I stand to be corrected, I maintain that without 12 months service there is little one can do but appeal. Legally, although there is no case for unfair dismissal, there is a very remote possibility of a breach of contract (as despite what it says in the T&Cs I am sure that there must be discipline and grievance procedures forming a part of the contract), however given the cost involved in sueing the employer, and the fact that if proven, damages will only be awarded for actual losses sustained, this would be a very expensive, and largely fruitless exercise.

Unless anybody disagrees?

But who/How would i appeal ?, The grievance procedure is only available on an internal intranet which i now no longer have access too ? There is no mention of an ability to appeal in the letter i have recieved just that i will be paid as per normal etc (Normal date)?

Not too bothered about suing them, Basically i want to make sure that the company know what the interim Facility Manger is doing as her has now dismissed 5 members of staff and i have found out from another member of staff that he has told people that i just walked out and never returned and not that i was told i was no longer required etc.

Am i correct to assume that my P45 will be issued with my payslip as i have not been given this either ?

Hi just a little update, i sent a letter to head of HR and also an email to Managing Director and the Major partner and have received a reply stating :

I note that you wish to raise your concerns as a grievance and, as your employment has terminated, I suggest this is dealt with under what is termed the "modified grievance procedure". This means that your grievance can be dealt with in writing rather than holding a formal meeting.

Do i just write back and inform HR of the issues and then let the company investigate this, I have found out that at least other peopele received the same treatment as i did the following day.

Hi Majik,

Take a look at this link Im sure I am ok to post this from Business link

grievance procedures | Business Link

It should tell you the difference in procedures, I beleive that you have 3 months from date of dismussal to raise the greivance officially. You need to follow procedure to the letter even if ex employer does not, in the event that this were to go to tribunal your following procedure will be seen in a better light.

You should be aware that 9 out of 10 tribunal cases are lost by employer or employee not following procedures.

BB

Sidewinder is talking sense. Whilst there seem to have been many breaches of Statutory Procedures unless you can find a 'back door' route to the ET then your stuffed. Breach of stat procedures is no free standing claim. Will need 1 year to claim unfair dismissal and then 'tab on to this claim the breach of stat procedures'

Unless you have a back door route. Back door route = one of the exceptions that allow you to claim unfair dismissal without 12 months continuity of service i.e. discrmination, assertion of stat right, etc (too many to mention).

If you ain't got one of this then move on. and forget this as you will have no claim to bring and any no win no fee solicitor will tell you exactly the same on the facts I have seen above i.e. 13 weeks service.

My attempted claim would be discrimination, The new facility manager has dismissed her for not doing her job. He has admitted to not knowing her job/her hours etc but stands by the fact that she wasn't doing it rite.

I feel this is discrimination as the new boss clearl;y decided that she was out etc.

Grounds for unfair dismissal on the grounds of unlawful discriminination may only be made on the basis of unfair treatment due to race, gender, age, sexual orientation, religion, disability or if a part-time or temporary worker is treated less favourably than a full time or permanent member of staff.

You will need to build a fairly cast-iron case that the Facilities Manager has treated your partner differently to other employees because of one of these factors.

He claims she is not proactive and that someone older would suit the job more.

They then had the Temp (Much older) onsite to take over immedialetly from my partner as she was escorted from the premises.

I don't really know how else to prove it as it was all verbal etc. the letter states that her time keeping and attendance were not up to scratch which we can prove is a lie etc. The only age related stuff was verbal and we have nothinig in writting.

How could we prove it ??

It's a difficult one to prove and if it came to tribunal it would be a case of who the panel believed.

It sounds like your partner has found a terrible employer and they could learn a lot about how they treat their employees. The problem is that your employment rights are less when you're new in the role.

It might be worth cutting your losses and putting your energy into finding an employer who is more positive and treats their workers better.