Sacked for having a baby?

[389shell]

Hi all,

 

As promised another little conundrum for you.

 

Right, my cousin started work as a secretary at the same place as my mum (my other thread http://www.consumeractiongroup.co.uk/forum/employment-problems/235512-employed-7-years-no.html ). When she started she had to sign a letter saying that her employment was only for 4 months, which she did, however her employment went way past the 4 months mark and she presumed, without asking, that she was a permanant member of staff. She left on maternity leave in July / Aug and has been paid maternity leave ever since, she planned to go back 2 days a week.

 

On Friday she received a phone call telling her that her employment was terminated with immediate effect as well as her maternity leave, however she has corrected him on the money side which he has backed down on, but he has now took on another member of staff for more hours to do the job she used to do.

 

Would implied terms to a contract cover her as her employment carried on past the 4 month mark without any discussion and she presumed that she was then made permanent?

 

Also to note, nobody there has a work contract so she cannot refer to that, she only signed a letter saying that she would be released in January 2009.

 

As always, ta muchley.

Edited December 1, 2009 by 389shell
Must have written that with magic in my head

[kurvaface]

Does she have all payslips going back to end of 4 month period? How long has she been working there?

[389shell]

I think she has the payslips, but will find out for sure. Should have put that she was there for 14 months.

[kurvaface]

That doesn't sound very temporary to me. I think you'll have a pretty strong argument. Hopefully an expert will come along.

[389shell]

Yep, she has all her payslips.

 

*Edited to add, she worked there aobout 10 / 11 months before matenity leave.

[cynic09]

Presumably this employer is already in the brown stuff for failing to provide written terms and conditions within the required time scale?

14 months continuous employment without a paper trail saying otherwise amounts to a permenant job.

Employer has also apparently failed to follow any guidelines regarding termination.

No written reasons for dismissal either I take it?

[389shell]

Presumably this employer is already in the brown stuff for failing to provide written terms and conditions within the required time scale?

14 months continuous employment without a paper trail saying otherwise amounts to a permenant job.

Employer has also apparently failed to follow any guidelines regarding termination.

No written reasons for dismissal either I take it?

 

Would you believe that this is the first time it has ever come up, the bosses' don't know anything about it?

 

No written reason, just a phone call.

 

I think i'll advise my cousin to speak to the bosses, what do you think?

 

Many thanks

[389shell]

I have written this for my cousin, it needs a LOT of work, any help would be much appreciated.

 

I was taken on to help out with secretarial duties on date and was given a letter to sign which stated that my employment would last no longer than four months. As you know I was there for much longer than four months, and as there was plenty of work and ending my employment was never discussed, I took that to mean that I had become a permanent member of staff.

 

I left on maternity leave on date and have received maternity pay ever since, something that would not have had happened if I was only a temporary employee.

 

On Friday I received a telephone call from xxxx advising me that November was my last month of receiving any maternity pay and that I was effectively sacked as a new member of staff had been hired and they would take over my duties. After seeking advise on the legal basis of his claim, I am afraid that he has acted illegally and I am well within my rights to take action against him.

 

As you know, under the Employment Rights Act 1996, subsection 1, every employee is entitled to a statement of employment particulars whether they are temporary or permanent staff, and they have to receive this contract by the end of their second month of employment, this would have to include a date when my employment was to end (assuming it was for a fixed period) (subsection (4) (g)) I have never received such a contract. As xxxx didn’t discuss ending my employment with you in January 2009 and subsequently paid me maternity leave, I thought it was a fair assumption, after fourteen months continuous employment, that I was permanent staff. Furthermore, my continued employment which I assumed was a permanent status became part of my work contract as it was an ‘implied term’ carried out by custom and practice.

 

I am sure that you will also agree with me that xxxx acted illegally in the way that he sacked me? By law, as my employer you must assume that I will take all 52 weeks of my maternity leave unless otherwise informed by myself, also as the parent of a child aged 16 or under, I am entitled to request a flexible working pattern to which you must consider my request and respond to me in writing. My position has not become redundant, and so I am entitled to return to work when my maternity leave has expired.

 

I would have followed the companies’ grievance policy, except I have never been given a copy of this and thought that it was better to write to you in the first instance.

 

I look forward to hearing your comments / proposed actions regarding my treatment.

Edited December 1, 2009 by 389shell

[elpulpo]

Seems like a perfectly good letter in the circumstances.

Make sure you send it by recorded delivery.

 

Now is always a crucial time in these situations.

Make sure you collect all the evidence you can, you never know what could prove to be relevant later.

[mariefab]

You might want to hold fire on that letter for now.

 

Instead she could send a letter saying that, according to the Employment Rights Act 1996 section 92 (4), she has the right to a written statement of reasons for dismissal.

 

Wait and see what they come back with and take it from there.

[elpulpo]

Aye. That's a fair point Mariefab

[mariefab]

elpulpo

It was your suggestion about collecting evidence that made me think of it.

 

As this employer doesn't seemed very clued up, (dismissing a pregnant employee with immediate effect by phone!) they might incriminate themselves further in the dismissal letter.

[elpulpo]

What I would advise though, is not now asking for a written statement of terms and conditions.

She's probably in a stronger position with her terms being implied by precedent.

If they write T&C's now, 'after the fact', they'll probably put in an extension of the fixed term.

Would you agree?

[mariefab]

Yes, a heads up on the absence of a permanent contract could lead to them inventing one with all sorts of terms and conditions.

 

As things stand at the moment; her continuing in their employment, after the fixed term of 4 months ended, implies that she became a permanent employee after that period expired.

 

If there are any terms and conditions in the letter she signed, saying her employment was only for 4 months, then this could constistute her existing contract of employment.

[kurvaface]

I would go with post #10. Ask for your dismissal reason in writing (say you need it for benefit claim or something like that) and don't alert the employer to your growing knowledge of the law. Let them incriminate themselves and then hit them with the law later. - if that makes sense!

[cynic09]

Nothing wrong with your proposed letter assuming you are dealing with reasonable people, at a higher level than the mentally challenged individual from 1950 who believes in instant remote dismissal.

It would be perfectly ok to write and ask for written confirmation of dismissal and the reasons for dismissal. (required by law). In addition a minimum of one weeks pay in lieu of notice and any accrued holiday is now due to be paid. therfore you should ask when this is to be paid as well.

 

Try not to get too bogged down in contracts if terms and conditions weren't issued to begin with. There is a legal minimum as to what must be contained in terms and conditions, a letter of engagement for four months is unlikely to suffice

14 months receipt of wages proves length of service. Which is the main issue. The debate about terms and conditions is 12 months late now.

While higher mangement may not be aware one of thier juniors believes he can dismiss by phone, it isn't really your responsibilty to educate them. They approved his appointment at least. Ensuring he acts in a lawful manner is thier problem!

[cynic09]

I don't see the need to make up a fiction regarding the request for written reasons for dismissal.

If they refuse to give them having been informed it's your legal right to be given them. It becomes a far bigger stick to hit them with at the tribunal.

Elpulpo is, as always, wise in advisiong recorded delivery. Recollection of recieved letters appears to be a common difficulty once inside tribunal chambers

[389shell]

Wow, loads has happened since my last post!

 

Thanks for all your advise, I am passing it all on as we speak. The only problem that I can see at the moment is that she is after getting her job back as it is quite a big office and she wouldn't have much contact with the manager when she returned. If she wrote to him and asked for the dismissal in writing, aren't we losing time with his bosses in sorting this out? If not, then I agree, it is a rather large rope to hang himself with.

[BeauBrummie]

In the absence of a written "Statement of Terms and Conditions of Servce" then the Employment Rights Act and the Working Time Regulations minimum terms will apply. Lots of people get hung up on this issue but you are protected as an Employee from the minute you start work by a set of minimum standards as laid down by the ERA and the WTR. Terms & Conditions can be varied locally for clarification. The ERA as good working practice reccomends that an employer gives its employee a written statement of the "local" conditions.

 

The main issues as I see them are in order of seriousness as an ET would see it :

 

Possible descrimination against a woman who is pregnant

 

Dismissal from continuos employment (post 12 months service) without good reason (if not point 1)

 

Failure to honour a Statutory right (Maternity Benefit)

 

While the letter is good I would also be asking for the Grievance procedure and a copy of the Disciplinary Procedure for the company, as Epulpo says any evidence that can be "aquired" or gained at this early stage could be beneficial later.

 

Beau

Edited December 1, 2009 by BeauBrummie

[BeauBrummie]

Wow, loads has happened since my last post!

 

Thanks for all your advise, I am passing it all on as we speak. The only problem that I can see at the moment is that she is after getting her job back as it is quite a big office and she wouldn't have much contact with the manager when she returned. If she wrote to him and asked for the dismissal in writing, aren't we losing time with his bosses in sorting this out? If not, then I agree, it is a rather large rope to hang himself with.

 

Why would she want to go back??

 

If the grievance procedure within the Company is followed then an investigation should be carried out by someone independant such as the internal or external mediator, who would come to an unbiased decision regarding the employment using the law---some of the wrong doings by this company are horrendous in this day and age---employer IMO should not be let off the hook.

 

Just my opinion of course.

 

Beau

[cynic09]

Hey Beau,

You neglected to mention the little 25% increase in settlement due to the employers failure to observe the 3 step process;)

A little late in the day to be concerned with copies of grievance and disciplinary procedures since the employer has already sidestepped the lot.

ET1 is your form in my opinion. After requesting your written reasons for dismissal and outstanding hol pay and pay in lieu

[BeauBrummie]

Hey Beau,

You neglected to mention the little 25% increase in settlement due to the employers failure to observe the 3 step process;)

A little late in the day to be concerned with copies of grievance and disciplinary procedures since the employer has already sidestepped the lot.

ET1 is your form in my opinion. After requesting your written reasons for dismissal and outstanding hol pay and pay in lieu

 

Sorry, while agree that the Employer is in the wrong, an ET and likewise an Employment solicitor will ask the employee "have you exhausted all of the company procedures?" If the answer is "no" then case managers within the ET service or a good employment solicitor will tell you to do that first.

 

It is all about procedure--- 90% of ET hearings are lost by one side or the other not following procedures that they should have.

 

IMO again, the lady needs to follow the company grievance procedure and that after having received the written reasons for dismissal and a subsequent appeal lodged, then if no joy next step is ET, with as you say the now increased awards.

 

Beau

Edited December 1, 2009 by BeauBrummie
Additional Info

[cynic09]

Absolutely Beau, however the only remaining part of the ACAS procedure still to be followed is the appeal against the decision of a disciplinary hearing that apparently never took place.

A statutory right that should be advised on the letter confirming the outcome of said hearing.

One cannot correctly raise a grievance AFTER summary dismissal

[389shell]

Right, I understand the reasons to exhaust all avenues with the grievance procedure and letter of reasons for dismissal, any other bits of rope I can think of along the way will also be used.

 

I think she wanted to go back because having a baby and other children, she didn't fancy the prospect in this climate of finding another job, this one fits in with school hours and is in her home town, easy to walk to home and school. Also she went to college to get this job.

 

Anyway, I will now relay all this info back to her and any other advise anyone would like to give. It is much appreciated, thanks everyone.

[BeauBrummie]

Absolutely Beau, however the only remaining part of the ACAS procedure still to be followed is the appeal against the decision of a disciplinary hearing that apparently never took place.

A statutory right that should be advised on the letter confirming the outcome of said hearing.

One cannot correctly raise a grievance AFTER summary dismissal

 

I agree with your analagy, but I think the grounds for the greivance would be exactly that, and if you do not dispute the decision, counsel for the employer could argue that the "Summary Dismissal" was not disputed and therefore accepted by default, as I say case managers will not let a dispute go to a hearing without all other avenues having been exhausted.

 

Beau