It's hard to see how that would stand up in law unless there's more to this than you've posted. You are entitled to resign! You aren't liable for any "losses" or inconvenience that causes them. And anyway you would be there now working on it if they hadn't decided to send you home.

 

 

My inclination would be to take them to Employment Tribunal for unlawful deduction from wages, but do take professional advice before doing that.

 

 

http://www.acas.org.uk/index.aspx?articleid=4125

 

http://www.landaulaw.co.uk/unlawful-deduction-from-wages/

Thanks again for getting back to me. I have not yet responded to their message.

If I reply to them saying i consider this an unlawful deduction of wages and request they pay me my notice plus accrued holiday pay, would i be jeopardising my case at a later date?

Also in your opinion, when would my employment have technically ended? They sent me an email late last night (15th). I gave my notice on 8th which is when they sent me home.

I wouldn't rush to say that just yet, you want to collect facts first. Let's see if people like Emmzzi or Sangie are able to add to what Ethel said.

I would also be interested to know if it's better to go to a tribunal or to start a small claims case for unlawful deduction.

HB

They have probably shot themselves in the foot by putting it in writing that they are refusing to pay your notice period. Simply sagging toy walked out and never came back would have been your word against theirs. So yes, based on there being no more to the story than this, I'd suggest a tribunal route - largely because they can't counter sue, and if they want to claim that you have done something which had resulted in a financial loss they'd have to initiate the claim themselves. And I doubt they would or could. But details are sketchy, and I wouldn't say that claiming financial loss wouldn't be possible - hence the tribunal route. In theory, an employer can sue for such things, but it rarely happens, and they'd need a strong case which I'm not convinced they would have.

You must try to resolve this before the tribunal claim though. You can ask ACAS to start a pre claim mediation (which must happen anyway, before a claim can be made). But I would, just for the sake of speed, probably write and say that they owe you notice pay and holiday pay, and they have no right in law to refuse to pay it, so you will be starting a tribunal claim in five working days unless you receive full payment before then. It may simply shake them enough to get the money without the hassle.

They have probably shot themselves in the foot by putting it in writing that they are refusing to pay your notice period. Simply sagging toy walked out and never came back would have been your word against theirs. So yes, based on there being no more to the story than this, I'd suggest a tribunal route - largely because they can't counter sue, and if they want to claim that you have done something which had resulted in a financial loss they'd have to initiate the claim themselves. And I doubt they would or could. But details are sketchy, and I wouldn't say that claiming financial loss wouldn't be possible - hence the tribunal route. In theory, an employer can sue for such things, but it rarely happens, and they'd need a strong case which I'm not convinced they would have.

 

You must try to resolve this before the tribunal claim though. You can ask ACAS to start a pre claim mediation (which must happen anyway, before a claim can be made). But I would, just for the sake of speed, probably write and say that they owe you notice pay and holiday pay, and they have no right in law to refuse to pay it, so you will be starting a tribunal claim in five working days unless you receive full payment before then. It may simply shake them enough to get the money without the hassle.

Thank you for the reply.

The message received last night advised my employment has been terminated due to gross misconduct (they have cited performance issues which has never been raised before and I have had two or three pay rises during my employment). They haven't used the words summary dismissal but I think this is what they have done..? Therefore they wouldn't have to pay my notice period.

I have done some reading online and am becoming confused whether I am claiming for unfair dismissal or wrongful dismissal. Which is it do you think please?

Additionally, if for example it was found I was summarily dismissed fairly, should I not be paid for the time in between them asking me to leave the office last Tuesday and today after receiving the message my employment has been terminated for gross misconduct? My contract does not saying anything about being suspended with no pay but it does say employer is entitled to suspend me on full pay if it needs to investigate anything which may lead to the termination of my employment.

Thanks

Be interested to see what the experts suggest but I'd think that what they've done would very likely be considered an Unfair Dismissal at Employment Tribunal for failure to follow reasonable procedures. Dismissing someone without carrying out an investigation and without giving them the chance to reply to the allegations is unlikely to be a fair process. And that's aside from the merits of their allegation, the question of how "performance issues" - capability - could amount to 'gross misconduct' and whether summary dismissal is within the reasonable range of responses by an employer. (In answer to your question, 'summary dismissal' is normally used to mean dismissal for gross misconduct without notice, ie employer doesn't have to give notice or pay you for the notice period.)

Oh yes, I'd agree! I thought they'd shot themselves in the foot admitting that they were refusing to pay the notice pay, but if they have actually claimed it as a summary dismissal after more than two years, then I think I'd be claiming unfair dismissal.

However, and there's always a catch, whether it is worth pressing such a case may be questionable. I'm assuming the OP had another job and that is why they resigned. So if that job pays the same or more than the former job, that limits the claim. Not a reason not to do it of course, but certainly a reason to ponder the benefit versus the effort given that the OP, unless they have a union to support them or legal insurance, will have to self litigate.

Sorry - having one of those days. I posted before is finished! I was going to add that, of course, the OP may find that simply the threat of a tribunal releases the money. It would be wise for the employer to not give the OP any more reason to want to think about unfair dismissal. Not that they have shown much wisdom so far...

Thank you for all of the replies. I will contact ACAS to get this started if they do not reconsider

In their message they have said they reserve the right to take legal action against me for reputational damage and financial loss.

After reading online, examples I can find are to do with not working notice and them having to organise cover. I did state on my letter i wouldnt be in on certain dates. However i was asked to leave on the day i gave notice. I assume this would be looked at as a suspension as i only received confirmation i was being dismissed yesterday. Therefore if for example they got a temp worker in, can they sue me for the cost of that even though they suspended me before i took an unauthorised absence?

Additionally i incorrectly gave 28 days notice rather than one month. Will this give them grounds to sue me or count against me?

I'm not sure if this is relevant but my job title is "Junior XXXXX"

Thanks again

Hello,

Sacking on the spot for gross misconduct is a bit of a myth, and a trap into which inexpeienced employers sometimes fall. Unless there has been due investigation, they cannot conclude it is GMC. A typcal procedure is

- suspend pending investgation

- invite to meeting to discuss evdence, and you can bring a union re or colleague

- then perhaps dismiss

- right to appeal

In the absence of an internal company policy, the judge would want to know if ACAS conduct guidelines had been followed.

I am assuming you have no paperwork from them and they would have to fabricate it to show this was in fact the case?

Also mild performance issues are not gross misconduct. GMC is more like stealing or punching someone.

http://www.acas.org.uk/index.aspx?articleid=3905

Hello,

 

Sacking on the spot for gross misconduct is a bit of a myth, and a trap into which inexpeienced employers sometimes fall. Unless there has been due investigation, they cannot conclude it is GMC. A typcal procedure is

- suspend pending investgation

- invite to meeting to discuss evdence, and you can bring a union re or colleague

- then perhaps dismiss

- right to appeal

 

In the absence of an internal company policy, the judge would want to know if ACAS conduct guidelines had been followed.

I am assuming you have no paperwork from them and they would have to fabricate it to show this was in fact the case?

 

Also mild performance issues are not gross misconduct. GMC is more like stealing or punching someone.

 

http://www.acas.org.uk/index.aspx?articleid=3905

Thanks for your reply and the clarity. You are right in assuming i have no paperwork. In their message they have said they have raised my lack of communication on several occasions and as i have failed to communicate seriois delays in the project, this is part of their reason for dismissing me. I have had no formal disciplinary procedures in the past. My evidence against their point of incompetence is that my salary has been increased by 14k during my employment. Is this a valid response do you think?

Also can you offer any opinion on my last post regarding them taking legal action against me (i saw your post was just one minute after mine so think there is a chance you may not have seen it?)

They have chosen to ask you to leave (can you evidence this?) before the end of your notice period which would severely limit any case against you.

They would need to prove an actual financial loss (not just hurt feelings) and that they had tried to mitigate that loss.

Are your skills so very unique no one could pick up the work? Have you handed over everything they may need like passwords etc?

I suspect from what you describe they have no clue about actual law and are just waving big words around. But you need to make sure you have an audit trail and are squeaky clean!

They have chosen to ask you to leave (can you evidence this?) before the end of your notice period which would severely limit any case against you.

 

They would need to prove an actual financial loss (not just hurt feelings) and that they had tried to mitigate that loss.

 

Are your skills so very unique no one could pick up the work? Have you handed over everything they may need like passwords etc?

 

I suspect from what you describe they have no clue about actual law and are just waving big words around. But you need to make sure you have an audit trail and are squeaky clean!

Hi, no unfortunately i don't think i have any evidence against this. I do have whatsapp message to this effect:

Me: Hi it has been several days now since i left the office. Can you formalise my departure from the company?

Senior manager: hi you have put us in a serious position and i am dealing with this currently please be patient

Me: ok i understand, can you confirm i have been placed on garden leave?

Senior manager: i cannot at this time

Me: so i have been summarily dismissed then?

Senior manager: this isn't a conversation for whatsapp. I will email you

Me: ok thanks

Would this constitute evidence?

I also did a handover on the day which is evidenced in their message to me (we had to take a rushed handover)

EDIT: in my letter i told them i would work my notice

Well, it's far from definitive but the ET woukd look at "the balance of probabilities." In which if you were properly dismissed the repy would be "the letter with the outcome of your hearing is in the post."

The advice you are getting here seems quite consistent from everyone (rare!)

I'd probably be getting ACAS to talk me thrgh next steps. It may well be that the thought of paying ET fees and needing a lawyer makes them decide to cut their losses.

Well, it's far from definitive but the ET woukd look at "the balance of probabilities." In which if you were properly dismissed the repy would be "the letter with the outcome of your hearing is in the post."

 

The advice you are getting here seems quite consistent from everyone (rare!)

 

I'd probably be getting ACAS to talk me thrgh next steps. It may well be that the thought of paying ET fees and needing a lawyer makes them decide to cut their losses.

I will email them as per previous advice and commence with ACAS if they do not reconsider

Thank you and to everyone else who has contributed. You have reassured me and given me the confidence to proceed with this

firstly, beware of "dereliction of duty" rather than unauthorised absence bt lest look at the practicalities. They have tolf you not to work your notice so expect to be paid for that time. They may well have got the procedures wrong and you can chase them for that but why?

At the moment you are between 2 positions, you are leaving of yoru own accord or you have been fired. If they apy you the 4 weeks pay and say nothing the you have left and they havent required you to work your notice- smiles all round. If they dont pay you then you have been dismissed with a load of complications that wont look good for either side regardless of the eventual outcome of any court or tribunal decision.

Wanting to take a few days off whe you arent there is a bit of a moot point so forget about that and keep to the bit about whetehr you get the correct pay at the end of your employment or not.

You need to ask the right question in a coherent way at the end of the month

I suspect, but I can't guarantee, that the threats are bluster to try to get you to back off. I emphasise that I suspect this to be the case. I would, however, have to be totally honest - if they had played this better, they could have dismissed you, and it is not entirely impossible that they may not have a case to argue. But if they did, I'd expect the letter to be from a solicitor. If it were, I'd be slightly more concerned. Contrary to Ethel's assertion, I think that done well, they certainly could have dismissed, and for gross misconduct, based on your stated intention to fail to attend work having been told that you must. But that is by the by - they didn't. So that information is really good advice for the future - no employee has the right to tell an employer when they will take leave, only to ask, and your actions were very ill advised.

So until or unless a solicitor is involved, I'd consider it just so much hot air. But, and this is a big but, please remember that you are slightly prejudiced and I suspect that there are more facts than in evidence here. It's pretty rare that someone quits just because their employer said no to a holiday request. So advice is based on what you tell us, not what you haven't! I think they've been stupid and left themselves vulnerable - and that may be the case. But without the full story we are limited to commenting on what someone chooses to tell us, and there's obviously more bad blood here than just them not paying the notice period etc. And it sounds like it is on both sides. Maybe for good reason, maybe not. But that isn't relevant to the law. It doesn't care if you love each other or hate each other. Being a bad employer isn't illegal. Or a bad employee. So just make sure that your actions are based on all the facts, not just the ones you like. That's probably the biggest mistake people make - thinking that their actions are the only reasonable ones, and nobody could think otherwise. Unfortunately, tribunals are littered with examples of that not being the case...

firstly, beware of "dereliction of duty" rather than unauthorised absence bt lest look at the practicalities. They have tolf you not to work your notice so expect to be paid for that time. They may well have got the procedures wrong and you can chase them for that but why?

 

At the moment you are between 2 positions, you are leaving of yoru own accord or you have been fired. If they apy you the 4 weeks pay and say nothing the you have left and they havent required you to work your notice- smiles all round. If they dont pay you then you have been dismissed with a load of complications that wont look good for either side regardless of the eventual outcome of any court or tribunal decision.

 

Wanting to take a few days off whe you arent there is a bit of a moot point so forget about that and keep to the bit about whetehr you get the correct pay at the end of your employment or not.

 

You need to ask the right question in a coherent way at the end of the month

Thanks for getting back to me

I handed my notice in and they sent me home on that same day. The first day I was to take off was three days after that. One week after being sent home they have sent me a message to say I am being dismissed and am only being paid until the date I gave my notice

I have sent them a message to say I believe I am owed holiday pay and notice pay but they have not replied. I am due to be paid by end of next week so will know then what they are doing

I suspect, but I can't guarantee, that the threats are bluster to try to get you to back off. I emphasise that I suspect this to be the case. I would, however, have to be totally honest - if they had played this better, they could have dismissed you, and it is not entirely impossible that they may not have a case to argue. But if they did, I'd expect the letter to be from a solicitor. If it were, I'd be slightly more concerned. Contrary to Ethel's assertion, I think that done well, they certainly could have dismissed, and for gross misconduct, based on your stated intention to fail to attend work having been told that you must. But that is by the by - they didn't. So that information is really good advice for the future - no employee has the right to tell an employer when they will take leave, only to ask, and your actions were very ill advised.

 

So until or unless a solicitor is involved, I'd consider it just so much hot air. But, and this is a big but, please remember that you are slightly prejudiced and I suspect that there are more facts than in evidence here. It's pretty rare that someone quits just because their employer said no to a holiday request. So advice is based on what you tell us, not what you haven't! I think they've been stupid and left themselves vulnerable - and that may be the case. But without the full story we are limited to commenting on what someone chooses to tell us, and there's obviously more bad blood here than just them not paying the notice period etc. And it sounds like it is on both sides. Maybe for good reason, maybe not. But that isn't relevant to the law. It doesn't care if you love each other or hate each other. Being a bad employer isn't illegal. Or a bad employee. So just make sure that your actions are based on all the facts, not just the ones you like. That's probably the biggest mistake people make - thinking that their actions are the only reasonable ones, and nobody could think otherwise. Unfortunately, tribunals are littered with examples of that not being the case...

Hi, thanks for getting back to me. Could you clarify the bold section above please? Do you mean that they could have fired me for stating my intentionto take time off but they would have had to follow correct procedures, but they haven't? In their message to me, they have stated it has been impossible to follow prescribed disciplinary procedures due to my unavailability and my email to them. They haven't asked me to attend a disciplinary meeting and looking online, I should have the opportunity to review their evidence of gross misconduct and be given an opportunity to appeal?

I have tried to give an honest account of what has happened but that is obviously from my point of view. Are there any points I could elaborate on or any specific details that may help give a clearer idea of the facts?

Thanks again

Yes, I mean that if they had followed a correct procedure then they'd have a stronger position. They would need to prove that yippy had refused too attend a that had been convened, and even then, they probably ought too have offered another date. And yes, an appeal and the right to be accompanied are both legal requirements in a disciplinary. But had they done so, a tribunal might take a very different view of the situation, because telling your employer to take a hike and you're taking time off anyway despite them refusing the leave is actually quite a seriously bad thing to do!

In terms of your version of events, it's hard to know what I'm looking for if I don't know what it is. It's always easier when talking to someone face to face. And even then, the other side of the story may be something they don't know. It comes out in the wash, so to speak! But you asked for some leave. They said no. You said I'm taking it anyway and quit. That's a pretty extreme reaction to take, don't you think? Why did the refusal matter enough to leave, and why do you think they refused? This is a very confrontational attitude - both from you and from them. It isn't the way most people act. So it suggests something more than "just" what is on the surface. It's probably too late to matter now anyhow - the confrontation is in full swing and it looks like it will have to follow its course. But when tempers get to this stage, it is always more difficult to resolve easily. And that may not be possible now.

your response is as clear as fog, you havent said what your notice period is or anything alse about your contract that would determine what either side is obliged to do. You may well be owed holiday apy, you may well be owed payment in lieu of notice and if you ahve been dismissed you will be owed money for the contractual notice period unless they cna thin of a better reason for your dismissal than high dudgeon.

Now further advice- dont email anoyon, you write on paper and post it. for one thing it gets taken more seriopusly and secondly there is a paper trail and they cant deny that in law where an email can bounce or disappear as spam and you cant prove otherwise. tell them what you expect, having read up on paid leave entitlement and dismissal on the .gov websites. You will ahve to get things right from now on regardless of what they do, they can afford lawyers or have insurance to cover their useless backsides and you dont.