Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #21
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    Default Re: Sacked on the spot without warning

    Quote Originally Posted by RachelMD View Post
    Certainly you need to go see an employment law solicitor, maybe a few as opinions vary.

    The qualification for SER issue is the big bowel of contention here.

    Your employer had a statutory obligation to provide you, within 2 months of the commencement of your employment, with a written statement of the particulars of employment. That document should include the periods of notice that each party is required to give the other. Evidently that document wasn't provided.
    Now, if you're in position of some seniority, where it might be implied that it was reasonabe for each party to give the other 4 weeks notice, you might be able to argue that your employer should have given you such notice in this circumstance. In which case you'd have, when taking into account the 4 weeks notice, over 1 years continuous service. Bingo, Statutory Employment Rights!

    As Sidewinder said, the danger is that if you take this to a solicitor, they'll take a look at your length of service and say, 'sorry, no can do'.
    I can't claim with any certainty that a claim would be accepted by ET on the 'implied notice' argument, but it's worth a punt. If you do go to see a solicitor, you need to impress this argument upon them.
    Are they still able to just terminate your employment without any grievance procedure or offer of any training?

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

    As for a senior position, i was in the sales department and was the only one in the company to look after the web side of things which they did pay me to do.

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  2. #22
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    Default Re: Sacked on the spot without warning

    Hello there. Do you have anything in writing that says you need to give a month's notice? Not necessarily a contract of employment - memos, emails etc for example.

    My best, HB

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  3. #23
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    Default Re: Sacked on the spot without warning

    Hi HB,

    I have just checked the email's i had when they offered me the job, all it has on it is my salary, info about my company car and fuel but nothing about the notice period

    Dear G,
    Further to your recent interview and our subsequent conversation, I have pleasure in offering you the position of Sales Executive.
    Your basic wage will be *** per month. Commission will also be payable and you will receive a company vehicle and 22.5 litres of fuel per week.
    As discussed, we would expect you to start employment on Monday 28th June, please advise if this is not possible.
    Please bring both parts of your driving licence and your bank details.

    Once again, congratulations and I look forward to seeing you on Monday.
    Your Faithfully
    This was the email they sent me to offer me the job.

    It seems the only thing i can do is write to them and see if they send me a contract and stuff and maybe speak to a solicitor in the mean time

    is there a set period they need to respond by???

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  4. #24
    Basic Account Holder RachelMD Informative RachelMD Informative RachelMD Informative RachelMD's Avatar

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    Default Re: Sacked on the spot without warning

    Speak to a solicitor first.
    Don't write asking for a contract, they might well send you one that includes all the terms that scupper your argument- 'only entitled to 1 weeks notice', etc.
    You're in a stronger position with no written contract.
    Plus, as they've not provided you with a written statement of particulars of employment, if you were to make an application to ET you could claim an additional 2/4 weeks pay for this failure.


  5. #25
    Basic Account Holder gazhodge1981 Novitiate

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    Default Re: Sacked on the spot without warning

    Quote Originally Posted by RachelMD View Post
    Speak to a solicitor first.
    Don't write asking for a contract, they might well send you one that includes all the terms that scupper your argument- 'only entitled to 1 weeks notice', etc.
    You're in a stronger position with no written contract.
    Plus, as they've not provided you with a written statement of particulars of employment, if you were to make an application to ET you could claim an additional 2/4 weeks pay for this failure.
    TBH Rachel I don't think they could produce one even if they wanted to, i know some people there have been there 20 plus years and never seen one

    I will arrange tomorrow to set up a meeting with a solicitor and see what they say.

    Is there anything important i need to ask a solicitor or something they are likely to ask???

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  6. #26
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    Default Re: Sacked on the spot without warning

    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


  7. #27
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    Default Re: Sacked on the spot without warning

    Quote Originally Posted by postggj View Post
    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 dismissedicon.

    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!

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  8. #28
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    Default Re: Sacked on the spot without warning

    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


  9. #29
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    Default Re: Sacked on the spot without warning

    The law entitles you to a minimum of 28 days paid holidayicon 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 grievanceicon 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


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  10. #30
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    Default Re: Sacked on the spot without warning

    Quote Originally Posted by postggj View Post
    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 dismissalicon 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).

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  11. #31
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    Default Re: Sacked on the spot without warning

    I have taken 7 days this year 2011 and 14 days in December 2010.
    I have also worked all the bank holidaysicon apart from this one go back to work after 3 days off and get sackedicon

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  12. #32
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    Default Re: Sacked on the spot without warning

    [QUOTE=Sidewinder;3432059]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 dismissalicon 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.


  13. #33
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    Default Re: Sacked on the spot without warning

    Quote Originally Posted by RachelMD View Post
    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.

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  14. #34
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    Quote Originally Posted by Sidewinder View Post
    The law entitles you to a minimum of 28 days paid holidayicon 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?


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    Default Re: Sacked on the spot without warning


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    Default Re: Sacked on the spot without warning

    Thanks


  17. #37
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    Default Re: Sacked on the spot without warning

    Quote Originally Posted by Sidewinder View Post
    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 dismissalicon???
    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.


  18. #38
    Basic Account Holder gazhodge1981 Novitiate

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    Default Re: Sacked on the spot without warning

    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 holidayicon, p11d rebate for the loss of fuel and car allowance for one month.

    IT'S TIME FOR US LITTLE PEOPLE TO FIGHT BACK
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  19. #39
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    Default Re: Sacked on the spot without warning

    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

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  20. #40
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    Default Re: Sacked on the spot without warning

    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

    IT'S TIME FOR US LITTLE PEOPLE TO FIGHT BACK
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