Early Probation Termination

[Curly109]

Recently employed on a three month probation contract in an industry I had not previously worked in.

My employer recruited me based upon my skills and achievements at a far larger organisation with the intention of modernising their working practices.

 

On my first day of working I had my role & responsibilities but received no targets, objectives, training or guidance and was told "off you go".

 

Due to the small size and skills of the workforce obtaining information became difficult

but I managed to understand the business set-up

and started collating information,

completed any tasks assigned

and even sourced potential new business from a former employer.

 

My manager has now decided with 3 weeks to go that "I am not a fit for their business as they work a different way to what I am used to " (they were pretty backward)

 

I actually feel aggrieved at this decision as:

- I had two monthly reviews where my performance or lack off was not discussed.

- The reviews were at short notice (I had prepared from experience),not documented and new objectives not set.

- Information & improvements submitted had not been read by other employees even after prompting.

- The manager had been made aware that I could not tie down the necessary employees to get information,yet nothing happened

- All tasks that were assigned were completed or in progress within timescales.

- My termination meeting was again at short notice and out of the blue as I had no indication I was not performing.

- The "not fit" reason was very weak and when I enquired in which areas they would not discuss it.

 

I believe throughout that they have acted below what I would expect from a company and to dismiss me without following employment guidelines is very poor.

 

Acas have been consulted and they agree that guidelines have not been followed and suggest that I follow procedure and appeal.

 

Has anyone else experienced anything similar and what was the outcome?

 

I would not want to work for this company again but they have left me at short notice with no income at the end of this month.

 

If I knew I was under performing I would have tried to address this or look for another position.

[honeybee13]

Hello and welcome to CAG. I expect the forum regulars will be along later with advice for you.

 

It's always upsetting to be let go, I understand that. What have the company paid you, or what will they pay you? And what does your contract say about notice periods please?

 

Best, HB

[Curly109]

Hi HB thank you

 

Notice of termination is one month

My probation would finish is 3 weeks time but they asked me to leave immediately and would pay me for the full month.

 

I think my main issues are they gave me no warning that I was not performing with chance to address this and that the final meeting was conducted without the chance to prepare or have representation..

[honeybee13]

Please wait for the people in the know, but they always say here that it's hard to argue about not having your probation renewed. They can use whatever reason they like, pretty much.

 

It sounds as if they haven't behaved very professionally, but I'm not sure what you can do about that. As I said, people will be along later.

 

HB

[sgtbush]

It sounds like a cover up to me and they just want rid of you.

 

Being under probation tho all they have to Say you haven't performed as they expected.

 

Tough I know but that's the reality.

[Curly109]

That's the problem they can use that as an excuse yet can't give me evidence where I haven't.

If anything it's the other way as I resolved issues that were outstanding and gave them over 100 suggestions on how to improve things.

 

Acas advised that the lack of review process/indication of under performing and the way they handled the termination could be grounds for Wrongful Dismissal

[sgtbush]

I dont think you can claim for wrongful dismissal.

 

You're in a probationary period and I think You have to be employed for 2 years or more.

 

A user called sanji or close to that user name seems to be the expert on employment matters.

 

Wait for their response

[Ethel Street]

Acas advised that the lack of review process/indication of under performing and the way they handled the termination could be grounds for Wrongful Dismissal

 

Did ACAS say what you would receive if you brought a wrongful dismissal claim successfully? AIUI normally what you'd get is employer being forced to pay you the salary for the full contractual notice period. But sounds like that is what they are doing anyway.

 

I dong think you can claim for wrongful dismissal.

Your in a probationary period and I think Yu have to be employed for 2 years or more.

 

That's for Unfair Dismissal. Unfair Dismissal and Wrongful Dismissal are two very different things. Wrongful Dismissal is a day 1 right.

 

http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/09/04/what-s-the-difference-between-unfair-and-wrongful-dismissal.aspx

[Curly109]

Hi Ethel

No that was not discussed

 

Ethel is correct and Wrongful Dismissal is the avenue that I am looking at.

 

I believe my ex-employer acted outside employment guidelines as:

The reviews were not scheduled,

nor documented and

content signed for confirmation of what was discussed.

(importantly no targets were set so what was the measurement for suitability?)

 

If they felt I was under performing this should have been discussed,

improvement actions agreed,

opportunity to improve given and all documented.

 

Notice of termination pending should have been given to allow for time to prepare and arrange for a representative to attend.

 

I now have a dismissal on my employment record, without I feel justification

[sangie5952]

Sorry.

Don't waste your time.

 

There is no law that says employers have to do anything like this

- up to two years, as you have been told, you have little access to employment rights.

 

You have a right to notice.

They have you notice.

Unfortunately that's your lot.

 

There's no further claim under wrongful dismissal.

The things you are talking about here would be relevant for unfair dismissal

- irrelevant for wrongful dismissal.

 

Wrongful dismissal only covers dismissal that is in breach of contractual terms.

[Curly109]

I believe the 2 year rule only applies to Unfair Dismissal

 

as Ethel pointed out Wrongful Dismissal does not have these restrictions and can be applied from day one of employment.

 

The points I am trying to gain information for is they have not followed Acas guidelines for the review and termination process e.g Notification in advance of a scheduled meeting and intent to dismiss.

 

This has been taken from the firstpracticemanagement.co.uk Probation - Contract termination section

 

Whilst an employee cannot claim unfair dismissal in the first year of service, which has now been increased to a two years qualifying period for employees starting on or after 6 April 2012,

 

if you dismiss someone without going through a fair dismissal process an employee can claim wrongful dismissal, for which there is no length of service requirement.

 

Wrongful dismissal occurs when an employer dismisses an employee in breach of the employer's contractual or statutory obligations,

 

for example by failing to follow a contractual disciplinary / dismissal procedure or failure to give contractual notice.

 

Employers can be required to pay damages for wrongful dismissal if taken to an employment tribunal

[ericsbrother]

they have given you notice and are paying you for more than the notice period so wrongful dismissal doesnt come into it. Now, as they dont have to give a reason for letting you go it is all about the mechanics and they have that covered by giving you a months notice and paying you.

 

Everything else you raise is of no interest to a tribunal. Lets face it, you said that they are rather backward so accept that you did not fit in to their organisation/prejudices. This doesnt mean that you did anything wrong so any reference they give should reflect that.

 

This is not about disciplinary matters.

Edited January 11, 2018 by honeybee13
Paras

[Curly109]

Yes

sadly that's the way I see it and one of the things about modern employment law.

 

One of my colleagues has now informed me that due to a sudden order increase they have to take more workforce on.

 

I felt they were trying to run undermanned anyway without this

 

am now thinking I have been sacrificed so as they can take on two directs.

 

Who knows,but thank you for your help

[sangie5952]

I believe the 2 year rule only applies to Unfair Dismissal

 

as Ethel pointed out Wrongful Dismissal does not have these restrictions and can be applied from day one of employment.

 

The points I am trying to gain information for is they have not followed Acas guidelines for the review and termination process e.g Notification in advance of a scheduled meeting and intent to dismiss.

 

This has been taken from the firstpracticemanagement.co.uk Probation - Contract termination section

 

Whilst an employee cannot claim unfair dismissal in the first year of service, which has now been increased to a two years qualifying period for employees starting on or after 6 April 2012,

 

if you dismiss someone without going through a fair dismissal process an employee can claim wrongful dismissal, for which there is no length of service requirement.

 

Wrongful dismissal occurs when an employer dismisses an employee in breach of the employer's contractual or statutory obligations,

 

for example by failing to follow a contractual disciplinary / dismissal procedure or failure to give contractual notice.

 

Employers can be required to pay damages for wrongful dismissal if taken to an employment tribunal

 

No. You don't understand.

There are NO statutory "guidelines"

- the things you think they must do are advice only.

They don't have too do them.

They haven't broken any contractual terms.

So there is no wrongful dismissal here.

 

Wrongful dismissal would be, for example, dismissal without notice when there is a notice period in your contact.

And the "compensation" is that you get paid the notice pay.

Nothing more.

There is no claim for wrongful dismissal for a claim of unfair dismissal, and yippy cannot claim unfair dismissal, in most circumstances, until two years.

 

So try to action this and you will lose - but you will also alienate them and your reference will sail off into the distance. They neither need to give your a reference, nor do they need to give your a good one. Only a truthful one. The minute the word litigatious appears in that reference, you won't be impressing any potential employers. If you had a case, fair enough. But you don't.

[Curly109]

Thank you for taking the time to reply but please try to be a bit less aggressive - can I please ask what your professional experience is?

 

As it stands Acas and after todays visit, CAB have advised that I use my employers appeal process as they both believe that Due Process has not been followed.

This has also been supported online by two advisory HR practioners and in addition 2 Employment law firms are interested in the chain of events I have submitted.

 

The ball is now in my court but I would still appreciate information from others.

[sgtbush]

I think sangie is well involved in employment law in their normal working life ( from reading little snippets on their background)

 

Sangies response is not aggressive, its truthful and stamps out any myths surrounding employment law.

 

The CAB, whilst they do Stirling work, is run with volunteers. They often get it wrong. Mostly get it right but often wrong.

 

With you being in a probation period, they do not have to support their claim with evidence. They don't have to put you on a development type course.

All they have to say is they don't find you suitable.

That's it.

 

Its tough I know, but if the company like to treat people in this way, why would you want to work for a shady company with no human qualities?.

 

They have contractually done everything they need to do to stay within the law. If they are so hard faced with you about this, tho wont be the first time they have done tho dance so they know where the boundaries are.

 

Here is what a probation period means. Taken from a job recruitment site.

 

What is a probation period?

 

It is, essentially, a safety net for employers after the recruitment stage is complete.

The probation period is a mutually agreed upon duration of time (typically anywhere between one and six months) in which your ability to meet certain performance levels

 

– in other words, the potential you exhibited in your interview – will be observed and assessed.

 

Pending a review, the subsequent failure to meet these standards within that period can lead to an employer dismissing an employee without fear of unfair dismissal claims and employment tribunals.

 

Have the company dismissed you under any of the following headlines?

Statutory Rights

Personal Injury

Health and Safety

Discrimination

Breach of Contract

Whistleblowing

 

Unless your dismissal falls under one of the above your chances of winning are very slim.

A simple google search tells you that

[honeybee13]

Thank you for taking the time to reply but please try to be a bit less aggressive - can I please ask what your professional experience is?

 

As it stands Acas and after todays visit, CAB have advised that I use my employers appeal process as they both believe that Due Process has not been followed.

This has also been supported online by two advisory HR practioners and in addition 2 Employment law firms are interested in the chain of events I have submitted.

 

The ball is now in my court but I would still appreciate information from others.

 

Sangie is with a trade union, I don't remember which. She may not sugarcoat her advice, but it's good and she has practical experience of employment problems.

 

I would echo sgtbush's advice about the CAB and volunteers however well-meaning. Even ACAS aren't what they were since they started a large call centre, according to people here who are in the know.

 

HB

[sangie5952]

This is correct.

For several years now the front line staff at ACAS who you speak to have no legal experience or skills.

They are a contract centre reading from a script.

 

It,s interesting how one is always being aggressive and nasty when someone doesn't like ones advice.

Never when they don't.

 

Nobody here has any real idea who anyone is,

and I'm not going to justify my position because someone demands it.

 

If the OP thinks they address right,

or that the advice CAB or ACAS might have given is correct,

then they are welcome to follow it.

 

n the other hand I know that it is the standard rubbish advice.

Appeal away.

 

you have the right to appeal (although not a legal right to appeal - that also doesn't exist).

It doesn't mean you will win.

It doesn't get you a case.

And it doesn't change a single thing about the situation.

There is no case.

You will not win a claim.

 

I don't care how many people think otherwise.

And don't pay anyone any money either, because you'll never get it back.

 

And with that, I'm out.

I have plenty to do without imposing my legally correct advice on people who don't want to hear it.

But when this goes pear shaped and you have a poor reference,

do remember that that was also your choice.

 

Make sure you really understand the risks your are taking

- because you won't win any legal case.

I guarantee that.

[Spudzulu]

Demand, Where did the OP demand anything from you? You gave strong advice(correct, as always) in which you make statements about well established organisations and then take offense when the OP questions your advice? You are far better than that.

[sangie5952]

"Thank you for taking the time to reply but please try to be a bit less aggressive - can I please ask what your professional experience is?

.......

 

The ball is now in my court but I would still appreciate information from others."

 

I would call both those things "demands". Where are they asking for the professional experience of others? Aren't they saying "anyone but you reply"? That is deliberately insulting and dressing it up as a "request" doesn't make it polite...

[ericsbrother]

2 employemt lawyers interested?

ask them if they are so certain of your case they will work on a contingency basis and I bet I know the answer.

 

To put it bluntly you have been told what is what,

even if your employer then considers your appeal (as it must should you make one) they arent gong to change their minds and wont have broken any law.

 

My advice is to accept that it isnt working and go on fairly amicable terms as you arent going to get anything else as far as cash goes and dragging this out will only make your life harder.

 

If CAB believe that due process hasnt been followed did they quote chapter and verse?

Again, I bet not.

 

ACAS used to use a lot of people who were professionally involved in employment matters (academics teaching law for example) as they were often slow to respond to requests

but what you got was good

but as said they seem to have a helpdesk type approach nowadays that may certainly be a lot quicker but probably limited in depth of knowledge.

 

What do you want from this?

Your job back?

sorry, not going to happen.

 

Your employer to say "sorry we didnt recognise your talents"

well, if they didnt then your talents were wasted on them anyway.

 

Dismissal is hard to swallow

but as already said,

we dont believe that you did anything wrong

just that it wasnt working out

and if you are honest with yourself

you probably wouldnt have stopped there in the long term anyway.

 

We would all like to leave at our own volition

but as the company indicated it was using a probabtion period ( means nothing in law)

at least it wasnt really somehting that could be said to be totally out of the blue.

 

I will reiterate what I said earlier

- nothing to fight over as they have done enough to see off any claim

and you would be wise to discuss what sort of reference they are likely to give if anything other than the anodyne worked here from.... to... in the position of....

 

Lastly I dont think Sangie wasnt being aggressive with you,

she was just rather frustrated that other advice you seem keen to want to be true is being given

when some of those agenices should know better and you are applying more weight to it than you should.

[Spudzulu]

"Thank you for taking the time to reply but please try to be a bit less aggressive - can I please ask what your professional experience is?

 

.......

 

The ball is now in my court but I would still appreciate information from others."

 

I would call both those things "demands". Where are they asking for the professional experience of others? Aren't they saying "anyone but you reply"? That is deliberately insulting and dressing it up as a "request" doesn't make it polite...

 

 

I think this reply is all that's needed, we obviously have different ideas of what demand means.

[disgruntled2007]

Thank you for taking the time to reply but please try to be a bit less aggressive - can I please ask what your professional experience is?

 

As it stands Acas and after todays visit, CAB have advised that I use my employers appeal process as they both believe that Due Process has not been followed.

This has also been supported online by two advisory HR practioners and in addition 2 Employment law firms are interested in the chain of events I have submitted.

 

The ball is now in my court but I would still appreciate information from others.

 

Wow! Sounds like you got it totally sorted and the employer will be quivering with fear now you have proved that Employment Law is on your side.

 

Just one more thing. Get yourself to court/tribunal and test it.

 

Don’t forget to let us know how you get on!

[sangie5952]

I think this reply is all that's needed, we obviously have different ideas of what demand means.

 

You obviously have a different idea of what polite means too.

 

I wasn't aggressive.

 

Believe me, if I were to be aggressive you would know about it.

What I am is correct.

 

I have decades of employment law experience, and I tell people what they need to know (what they asked about), not what they would like to hear.

 

If you only want to hear that you are right,

then say so up front and anyone who wants to tell you that can do so.

 

But don't ask questions when your aren't prepared to hear the answers.

This one really isn't all that hard either.

 

A decent Google search will tell you that I am correct.

 

No lawyer required.

[Ell-enn]

Sangie is of course correct (as always) for what it's worth I too am Employment Law Qualified