Hi

Thanks in advance. I am looking for some help on my current situation at work. I have worked there for more than two years and have not been subject to disciplinary procedures.

Last week I handed in my notice. The primary reason I did this was due to leave request being declined. In my letter i stated i would work my notice but would not be working the specific dates i requested.

Later on my line manager informed me that i would be leaving the same day and to prepare a handover which i did. This was seven days ago. Since then i have not received any information regarding the terms of my departure.

Two days ago i contacted my line manager's manager to discuss the situation. He told me he was busy but would contact me today. He didn't contact me so again i followed up with him. He advised that he was very busy as i had caused a serious issue. He said he would email this week. I responded to ask him to confirm whether i was on garden leave to which he replied he couldnt. I then asked whether i had been sacked on the spot to which he replied that he would email me this week.

I would just like some opinion on whether i should be on garden leave? If they decline to place me on garden leave and say i have been sacked on the spot for gross misconduct, how should i proceed?

Thanks a lot

Hello and welcome to CAG.

How much notice did you give them please and what does your contract say about a notice period.

Does the firm have an HR department?

HB

How long is your notice period?

Does your contract of employment expressly allow the employer to put you on gardening leave during your notice period?

It sounds as if they were considering sending you on garden leave but haven't done so. Nor is there any reason to think they have dismissed you. You've handed in your notice and you are working out your notice unless you agree something different before your notice period expires. Why do you think you should be on gardening leave, or be sacked on the spot? Gardening leave isn't something employees are entitled to and it isn't intended to be for your benefit to allow you to go on holiday or whatever. Did you resign thinking you would be put on GL and that would allow you to take the leave that had been refused? It doesn't work that way. While on GL you are still not allowed to go (eg) on holiday without permission.

Where this might all change for you is if during your notice period you take leave without permission. Which sounds like what you are intending to do. That would very likely give them grounds to dismiss you 'on the spot' for gross misconduct, stop paying you, and state in any future reference that you had been dismissed.

You’ve certainly given them grounds to dismiss you for gross misconduct, and they could have had the shortest of investigations to conclude that.

However, if they have concluded that, you should still have had a disciplinary meeting and have been advised of the outcome.

I’d hold fire until your notice period has elapsed unless they contact you.

You’ve certainly given them grounds to dismiss you for gross misconduct, and they could have had the shortest of investigations to conclude that.

However, if they have concluded that, you should still have had a disciplinary meeting and have been advised of the outcome.

What misconduct has OP committed? None disclosed. Taking leave without permission is misconduct. Merely saying you are going to isn't, not until you actually do it.

Hi

Thanks for the reply. We do not have HR dept it is a small company

How long is your notice period?

 

Does your contract of employment expressly allow the employer to put you on gardening leave during your notice period?

 

It sounds as if they were considering sending you on garden leave but haven't done so. Nor is there any reason to think they have dismissed you. You've handed in your notice and you are working out your notice unless you agree something different before your notice period expires. Why do you think you should be on gardening leave, or be sacked on the spot? Gardening leave isn't something employees are entitled to and it isn't intended to be for your benefit to allow you to go on holiday or whatever. Did you resign thinking you would be put on GL and that would allow you to take the leave that had been refused? It doesn't work that way. While on GL you are still not allowed to go (eg) on holiday without permission.

 

 

Where this might all change for you is if during your notice period you take leave without permission. Which sounds like what you are intending to do. That would very likely give them grounds to dismiss you 'on the spot' for gross misconduct, stop paying you, and state in any future reference that you had been dismissed.

Hi Thanks for the reply

I didn't ask for garden leave or expect gardening leave. Just on the day I handed my notice in they told me it was my last day. I wrote in my letter that I would work my notice except certain days that I would be absent... apologies if this wasn't clear

You’ve certainly given them grounds to dismiss you for gross misconduct, and they could have had the shortest of investigations to conclude that.

However, if they have concluded that, you should still have had a disciplinary meeting and have been advised of the outcome.

I’d hold fire until your notice period has elapsed unless they contact you.

Hi Thanks for reply and advice

I feel kind of in limbo. I can't start a new job if I am on garden leave but can if I have been sacked on the spot. I also have no idea how much I am going to be paid come end of May.

What misconduct has OP committed? None disclosed. Taking leave without permission is misconduct. Merely saying you are going to isn't, not until you actually do it.

True.

So it depends on if the OP has been absent on any of those days, or for if each day they have said “I’m at home, as agreed, but available if you want me in ....”

The company may also have concluded there was a breakdown in mutual respect and trust....

What misconduct has OP committed? None disclosed. Taking leave without permission is misconduct. Merely saying you are going to isn't, not until you actually do it.

Thanks for your comment. They asked me to leave on the day I handed my notice in. I have had no contact with them except brief exchanges described above

True.

So it depends on if the OP has been absent on any of those days, or for if each day they have said “I’m at home, as agreed, but available if you want me in ....”

The company may also have concluded there was a breakdown in mutual respect and trust....

Hi , on the day I gave them the letter, they said it was my last day. I have had limited contact since then and they haven't asked any questions regarding my whereabouts

Hello and welcome to CAG.

 

How much notice did you give them please and what does your contract say about a notice period.

 

Does the firm have an HR department?

 

HB

Hi 4 weeks in error should have been one month

We do not have HR dept as is a small company. My manager's manager is co owner.

Hi , on the day I gave them the letter, they said it was my last day. I have had limited contact since then and they haven't asked any questions regarding my whereabouts

I misread your post to mean you had been told you would be leaving the workplace the day you handed in your notice but as they hadn't followed up you were still at work. I'd just write to them to confirm that as instructed by Mr X on xx/yy/2018 you are at home and will not be attending the workplace during your notice period. Just that, nothing more, so that you have got written evidence of what happened. If they don't agree the onus is on them to contact you and say so. My point about taking leave remains the same though, whether at work or at home you are not entitled to go on holiday without permission and doing so could result in disciplinary action and dismissal.

Hi , on the day I gave them the letter, they said it was my last day.

Unless they explicitly stated that your contract was terminated from that day or that they were dismissing you a Tribunal would be very unlikely to interpret those words as meaning you had been sacked on the spot. The more likely interpretation is "last day" meant your last day attending the workplace.

So there's no specific person who's responsible for HR?

HB

I misread your post to mean you had been told you would be leaving the workplace the day you handed in your notice but as they hadn't followed up you were still at work. I'd just write to them to confirm that as instructed by Mr X on xx/yy/2018 you are at home and will not be attending the workplace during your notice period. Just that, nothing more, so that you have got written evidence of what happened. If they don't agree the onus is on them to contact you and say so. My point about taking leave remains the same though, whether at work or at home you are not entitled to go on holiday without permission and doing so could result in disciplinary action and dismissal.

Thank you for reply and clarification. I have looked at my contract and it does not give unauthorised absence as gross misconduct. I was of the opinion for a first offence they wouldnt be able to summarily dismiss me with no pay. I am now taking it that they have to pay me until they at least tell me they have summarily dismissed me? Can you tell me your thoughts on that point please?

Also the contract states: "on giving or receiving notice the employer shall be entitled (but not obliged) to bring yoir employment to an end forthwith by laying You in lieu of notice an amount equal salary for the unexpired period of such notice" is it fair to assume this is what is happening? Thanks in advance

So there's no specific person who's responsible for HR?

 

HB

Not as far as i am aware to be honest. However i have not had any issue that would involve HR during the 2 and half years i have worked there. The company is small and has an informal feel. I couldnt say with certainty that there is no person responsible for HR matters.

Thank you for reply and clarification. I have looked at my contract and it does not give unauthorised absence as gross misconduct. I was of the opinion for a first offence they wouldnt be able to summarily dismiss me with no pay. I am now taking it that they have to pay me until they at least tell me they have summarily dismissed me? Can you tell me your thoughts on that point please?

 

Also the contract states: "on giving or receiving notice the employer shall be entitled (but not obliged) to bring yoir employment to an end forthwith by laying You in lieu of notice an amount equal salary for the unexpired period of such notice" is it fair to assume this is what is happening? Thanks in advance

In general unauthorised absence isn't usually gross misconduct justifying summary dismissal but it can be if, as in your case, you asked for permission to take leave and it was refused but you go anyway. That was why I made the comment about gross misconduct. Whether it actually would be in your case if you went would depend on the precise facts and I wouldn't want to predict what a Tribunal would decide. But as you haven't taken leave (yet!) they have no grounds to dismiss you for misconduct so they should still be paying you. Pay in lieu of notice [PILON] is possible under your contract but again unless they have specifically stated they are invoking that condition you can't assume that is the situation. If you want that to happen (eg so that you can go on holiday without any possibility of consequences) then you need to put it in writing to them, get them to confirm they have done that. You can be sure that unless the top boss has decided to go PILON payroll dept will not be putting the money in your next pay slip!

In general unauthorised absence isn't usually gross misconduct justifying summary dismissal but it can be if, as in your case, you asked for permission to take leave and it was refused but you go anyway. That was why I made the comment about gross misconduct. Whether it actually would be in your case if you went would depend on the precise facts and I wouldn't want to predict what a Tribunal would decide. But as you haven't taken leave (yet!) they have no grounds to dismiss you for misconduct so they should still be paying you. Pay in lieu of notice [PILON] is possible under your contract but again unless they have specifically stated they are invoking that condition you can't assume that is the situation. If you want that to happen (eg so that you can go on holiday without any possibility of consequences) then you need to put it in writing to them, get them to confirm they have done that. You can be sure that unless the top boss has decided to go PILON payroll dept will not be putting the money in your next pay slip!

Thanks a lot. I appreciate your replies they have helped me understand my situation better. I was told that 'today is your last day' but nothing in writing. Does this mean i am technically suspended as they haven't told me i have been fired or been placed on garden leave?

Thanks a lot. I appreciate your replies they have helped me understand my situation better. I was told that 'today is your last day' but nothing in writing. Does this mean i am technically suspended as they haven't told me i have been fired or been placed on garden leave?

I wouldn't like to guess what a Tribunal judge would conclude, but again suspension is a formal act in employment law and Tribunals wouldn't normally presume it unless either the employer expressly stated it or the facts left no other credible conclusion. My guess - and I am not an employment lawyer - is that you are on gardening leave, even though they didn't use the words - gardening leave isn't a formal status in employment law, it's just an informal description. Really though you'll only find out what your employer thinks your status is by pressing them to confirm it to you in writing!

I wouldn't like to guess what a Tribunal judge would conclude, but again suspension is a formal act in employment law and Tribunals wouldn't normally presume it unless either the employer expressly stated it or the facts left no other credible conclusion. My guess - and I am not an employment lawyer - is that you are on gardening leave, even though they didn't use the words - gardening leave isn't a formal status in employment law, it's just an informal description. Really though you'll only find out what your employer thinks your status is by pressing them to confirm it to you in writing!

Thanks i have done that today and will follow up in a few days

I have another question apologies. If later they tell me i have been sacked, do they need to pay me in full for the time between them asking me not to come back to the office and them informing me of their decision? Thanks again

What evidence do you have that they told you not to return to work, as opposed to (what they could claim) that you left work one day and never came back?

And whilst I won't be commenting on any "rights" or "wrongs" not in evidence, I will point out for future reference that nobody is entitled to the holidays that they want, and resigning every time somebody says no would lead to many short periods of employment. An employer always has the right to refuse leave requests, or you dictate exactly when an employee takes all of their leave.

Hi all

Thanks for replies so far. I now have an update

They have sent me a message today, 15th May, to say they are only paying me for the eight days I worked this month. They have advised my notice period pay is being forfeited to cover the financial loss i have caused. I was an employee.

Does an employer have the right to do this?

Do you think you've caused them financial loss?

HB

Do you think you've caused them financial loss?

 

HB

I was working on a product that was to be exhibited and they have said they are unable to exhibit the product now.

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/