Are we not missing the point on this

its unlawful to terminate the contract of employment on the spot

if performance etc was an issue then a disciplinary hearing would be undertaken with a final decision before termination

even if guilty of gross misconduct, say theft, is still not a valid excuse to terminate on the spot

Are we not missing the point on this

 

its unlawful to terminate the contract of employment on the spot

 

if performance etc was an issue then a disciplinary hearing would be undertaken with a final decision before termination

 

even if guilty of gross misconduct, say theft, is still not a valid excuse to terminate on the spot

It is indeed unlawful, and a disciplinary hearing should have been held. The employee does, after all, have the right not to be unfairly dismissed.

The problem is, that the only remedy available is a complaint to an Employment Tribunal, and being dismissed with less than 12 months service means that the OP is barred from that course of action unless it can be proven that he is entitled to a period of notice which would take him over the 12 month threshold!

I see your point but the average time for a disciplinary hearing can be a few weeks

in all through this time the employee is still under contract and is fast reaching the 12 month point of employment

The law entitles you to a minimum of 28 days paid holiday in a year - when you say that you have had 7 days, do you mean that this is the only paid holiday you have had since starting work? If so, then I make it nearly 26 days for 11 months service, so they should owe you 19 days holiday pay - or have I read it wrong?

Are they still able to just terminate your employment without any grievance procedure or offer of any training?

 

They aren't allowed to - they are supposed to go through due process, but the law offers you no remedy unless you have completed 12 months service. A contract can only be terminated by mutual consent, giving notice as applicable. As this was not a mutual agreement, you have been dismissed, which must be carried out lawfully or it is considered 'Unfair'. Whilst your dismissal is undoubtedly 'Unfair', the debate is over what you can do about it, and options are limited unless you can prove that had you been dismissed properly, your effective date of termination would have been over the 12 month threshold where you can take the matter to an Employment Tribunal.

 

As far as notice I know they would want a months notice if i was going to leave.

That is what we need to prove somehow

[/Quote]

I see your point but the average time for a disciplinary hearing can be a few weeks

 

in all through this time the employee is still under contract and is fast reaching the 12 month point of employment

Absolutely, but the OP HAS been dismissed with pay in lieu of notice, and with no due disciplinary process. The employer would seem to be aware that in doing this, they are relatively free of a risk of Tribunal action for Unfair dismissal as they have stopped the clock at 11 months. Letter of dismissal on performance grounds, P45 and termination pay already issued. neat, tidy and all within the 12 month limit - unless the OP was entitled to a months notice (contractual), not a week (statutory).

I have taken 7 days this year 2011 and 14 days in December 2010.

I have also worked all the bank holidays apart from this one go back to work after 3 days off and get sacked

Absolutely, but the OP HAS been dismissed with pay in lieu of notice, and with no due disciplinary process. The employer would seem to be aware that in doing this, they are relatively free of a risk of Tribunal action for Unfair dismissal as they have stopped the clock at 11 months. Letter of dismissal on performance grounds, P45 and termination pay already issued. neat, tidy and all within the 12 month limit - unless the OP was entitled to a months notice (contractual), not a week (statutory).[/quote

 

 

Bare in mind SW, that pay in lieu of notice can only be given if there is contractual provision for it.

I think this is one that is 'worth trying' for a SER qualification.

The ER failed to provide a WSoPoE, so the EE has at least an argument that it was implied (and therefore in the circumstance a contractual provision) that there should have been 4 weeks notice given. Worth a punt, nothing to lose.

Bare in mind SW, that pay in lieu of notice can only be given if there is contractual provision for it.

No - pay in lieu can be made with or without a contractual provision, the point being that without a contractual term it represents 'damages' for the employee not being permitted to work that notice, providing that the amount paid represents the full amount that the employee would have earned had the notice been fulfilled.

I agree that this needs to be pushed as the OP has been treated with utter contempt and I bet it isn't the first time that the ER has done this!

If only the ER could be made to accept that there should have been a month's notice - interesting that the OP seems to think this was the case.

The law entitles you to a minimum of 28 days paid holiday in a year - when you say that you have had 7 days, do you mean that this is the only paid holiday you have had since starting work? If so, then I make it nearly 26 days for 11 months service, so they should owe you 19 days holiday pay - or have I read it wrong?

Could I ask where the law states you are entitled to 28 days holiday per year?

TRY THIS LINK

http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10029788

Thanks

No - pay in lieu can be made with or without a contractual provision, the point being that without a contractual term it represents 'damages' for the employee not being permitted to work that notice, providing that the amount paid represents the full amount that the employee would have earned had the notice been fulfilled.

 

I agree that this needs to be pushed as the OP has been treated with utter contempt and I bet it isn't the first time that the ER has done this!

 

If only the ER could be made to accept that there should have been a month's notice - interesting that the OP seems to think this was the case.

No. there must be specific contractual provision that the ER can pay PILON.

And there seemingly wasn't such provision here, so unless the ER can show grounds for GM, they should have given notice.

Can I just check, from #1 Gaz, you said-

"was for my replacement is there anything i can do about constructive dismissal???

All they gave me in the office was a letter saying i was being terminated there and then, my pay slip for this month and next month, my p45 and a cheque which is one months money, commission for what i have sold, less tax."

Did you get a cheque which is one months money plus commission?

If so, that helps a lot.

They gave me a cheque with was one months money plus commission for everything i had already sold.

The letter they gave me says the cheque is for the amount that includes basic pay for 4 weeks, 1 weeks holiday, p11d rebate for the loss of fuel and car allowance for one month.

Hello Gaz. I don't have anything to add to what the guys have said, but I think this has a while to run. It just sounds more and more like a premeditated stitch up to me. I hope we can help you achieve a fair solution to all this.

My best, HB

Thanks HB,

It does feel it

Looking at the commission they have paid me with a clear head this morning and it is wrong it is £90 short and the National insurance amount is double what is is normally for a month

Gaz, just do what they tell you to do on here, nothing to lose, everything to gain. I wouldn't give up over two years ago, being made ill through bullying at work, then being dismissed on capability. I'm very glad I didn't give up. Everyone who cared about me told me to give up, and move on for the sake of my mental health; I refused to do this and now reap the rewards! I was told I didn't have a chance, but I would not accept this and plowed on with the help of Unison. I didn't bother with ET (I had full Employment Rights), but the principle is the same, isn;t it? You have been wronged and that has to be rectified. So, if there is the slightest chance you can act, then do - it'll make you feel so much better.

Good luck.

Hi all,

 

Would someone be able to give me some advise please.

 

I went to work today and at 2pm i was called into the office and was told my employment was being terminated there and then

They gave me a letter saying it was for poor performance and poor time keeping which i was shocked at, as no one has ever said anything to me. I have been in my job for just over 11 months and never even had a come on your not doing your job or anything. I have not been late or missed time at work so i am a bit confused.

In the 11 and a bit months i have been working with this employer i have never been given a contract or job description and only limited training (not enough to do my job).

Is there anything i can do in terms of unfair dismissal, breach of contract???

Also they started interviewing people last week which I thought they were adding to the team but it now looks to me it was for my replacement is there anything i can do about constructive dismissal???

All they gave me in the office was a letter saying i was being terminated there and then, my pay slip for this month and next month, my p45 and a cheque which is one months money, commission for what i have sold, less tax.

 

Any help would be helpful

Pay slip(s) for this month (May - ?) and next month (June - ?)

Cheque which is one months money, commission for what you've sold, less tax... What does that cheque cover? (May, or June... or both?)

I got paid yesterday as normal in the bank for may and the cheque is to cover June.

Can i just ask as they have paid me for June with the cheque, wouldn't that take me over 12 months as they have paid me for June???

I have two pay slips, one for May and another for June

Well done...

Go for it!

However... I strongly suggest that you make 3 true copies of that cheque... See if you can get the Pot Office to do that for you... Just in case your cheque gets rejected by your bank... Keep those copies safe!

I'd do even better...

I understand that money is important, but I'd pursue now a case for unfair dismissal, and keep the cheque as proof and as an important exhibit, along with that payslip for June.

Cheques can always be cashed in within 12 months of their issue...

TBH i wasn't going to cash the cheque as you said i might need it

what is my best course of action??? Should i see a solicitor at this point??

Yes,

Do not contact your ex-employer at anytime from now on.

They also may come back to you pleading an error made by payroll or HR department. This is when you have to put forward how large a company it is, if they do produce payslip on site, or contract that part of the business out, and, please, write down the names of the heads of departments while they are still in your head.

Payslips are done on site by the accounts department.

As for a mistake the letter they gave me saying they were terminating my employment says the cheque includes 4 weeks basic pay and is signed by the sales manager

If it was a mistake then why would they have gave me a cheque with another 4 weeks pay on it in the first place?

Gather together every single document, note, email, letter, written comment, payslip, etc that you have in relation to your employment... I read somewhere, I believe, that they did not produce a statement of employment particular within the prescribed time (2 months from start of employment), therefore, sit down and write down all your obligations to your ex-employer, including, but not exhaustively, working hours, responsibilities, car, benefits, etc... everything you may recollect which could be of use to a solicitor in order to have your case assessed...