Dismissal with no prior warnings (Constructive / Unfair Dismissal ?)

[elpulpo]

OK. But the employer must have a different person present ?

Ideally, an appeal should be heard and considered by someone other than the person who decided the outcome of the disciplinary.

But in the case of small businesses, it's not a no-no. ACAS Guidlines give dispensation for situations where that's not practical.

 

Given that she was the person making the accusations in the first place, she shouldn't have heard the disciplinary! She's hardly going to throw out her own argument.

[elpulpo]

Do you think the 'legal advisor' was a solicitor?

[BeauBrummie]

I googled 'effective date of termination' and from what I can see the EDT is the date that PILON is given. So whatever notice she was entitled to wouldn't take her over the 1 year qualifying period, unless she actually worked that period or was on 'garden leave'.

However, I'm not sure if she can argue that as the grounds for her dismissal were not severe enough to warrant summary dismissal, she should have worked the notice period, therefore she can request that an ET consider her claim. It's complicated. That's why we need Elche.

 

Im with you on that Epulpo, but again I think the contract needs to say what constitutes a summary dismissal and therefore what denies the employee of the otherwise expected rights.

 

If the contract states what is considered to be a Gross Mis-Conduct and lists the items as

 

Theft

Racism

Company Espionage

Etc Etc

 

Then it could be argued by the employer that one of those rules has been broken.

 

I have not seen anything in this thread that says this to be the case.

 

My view

 

The contract sounds ambiguos and therefore the employer has left themselves wide open to this type of questioning, and an ET would probably view it as bad working practice. However I do not think this case would get to an ET. More likely a case management settlement (Compromise) agreement with both parties where the employee would get a reference that allows her to continue with her working life without such a serious accusation being made against her .

 

Something to consider if the appeal fails which it sounds as though it would.

 

Beau

[nickoxford]

Exactly elpulpo. I agree.

 

I guess that's why she had a legal advisor there. Can she use the same advisor ? or does that leave her open to our claims of unfairness ?

 

I suspect we are "just going through the motions" to get to a point where ET is an option.

 

Per my earlier question... do we then try to see if we qualify for ET based upon the notice period issue ?

[elpulpo]

Aye.

[nickoxford]

Do you think the 'legal advisor' was a solicitor?

It is possible that the legal advisor was a solicitor, but we cannot verify because she refused to give us any details of who he was.

[mariefab]

I'm sure that I've read somewhere that non-contractual PILON can be a breach of contract.

 

In this case, non-contratual PILON has been given and also the wrong amount of notice.

 

When someone is summarily dismissed no notice at all should be given.

 

You're right pulpo, we need elche.

[nickoxford]

Im with you on that Epulpo, but again I think the contract needs to say what constitutes a summary dismissal and therefore what denies the employee of the otherwise expected rights.

 

If the contract states what is considered to be a Gross Mis-Conduct and lists the items as

 

Theft

Racism

Company Espionage

Etc Etc

 

Then it could be argued by the employer that one of those rules has been broken.

 

I have not seen anything in this thread that says this to be the case.

 

My view

 

The contract sounds ambiguos and therefore the employer has left themselves wide open to this type of questioning, and an ET would probably view it as bad working practice. However I do not think this case would get to an ET. More likely a case management settlement (Compromise) agreement with both parties where the employee would get a reference that allows her to continue with her working life without such a serious accusation being made against her .

 

Something to consider if the appeal fails which it sounds as though it would.

 

Beau

The contract does not state anything like that but the amendment to the contract issued in October states (word for word)...

 

Reasons which may lead to gross misconduct dismissal include: drunkenness, theft, smoking, illegal drug-taking, child abuse.

 

So i guess the question here is still "how far must we go to prove that the remark was not racist" or is the burden of proof on the owner ? Where we will ever get the opportunity to get this tested if we cannot force an ET ?

[nickoxford]

I'm sure that I've read somewhere that non-contractual PILON can be a breach of contract.

 

In this case, non-contratual PILON has been given and also the wrong amount of notice.

 

When someone is summarily dismissed no notice at all should be given.

 

You're right pulpo, we need elche.

What is elche ?

[elpulpo]

Elche. The legend. She's a site member who pops up sadly not that often these days. Knows everything. Supports Man Utd, but I still like her.

[elpulpo]

"how far must we go to prove that the remark was not racist"

If it went as far as an ET, I'd be hugely confident they wouldn't think it racist.

[nickoxford]

haha. nice one. my qustion should have been WHO is elche !/

 

OK, i just looked out an attached paper which was attached to her pay statement and is titled. Breakdown of last wage.

 

Shows the hours worked to the Thursday 4th Feb when she was issued with the dismissal.

 

It totals the amount and then beneath it says (exactly) ...

 

PLUS: one weeks pay in lieu of notice

 

then an amount. She then deducts 2 days pay for days she was due to make up where she could not get into the nursery due to the blizzards.

 

She then adds a half day unused holiday pay.

 

So surely this is conclusinve evidence that even though she was dismissed with immediate effect (which I take to mean ... "leave this place today") she was give a weeks notice.... which is not in accordance with the contract ?

[elpulpo]

seems like it. Gotta go. Speak to ya tomorrow.

[nickoxford]

Thanks elpulpo

[nickoxford]

Is PILON taxable ? I notice that that the entire amount was taxed in before payment.

[Uncertain]

I don't agree, Uncertain.

If they pay PILON, then the 'Effective Date of Termination' is held to be the date they receive the PILON. The 'EDT' only extends to the end of the notice period if they're given 'garden leave' or they actually work the notice period.

There might be an argument here for extending the 'EDT', but it's not as clear-cut as you make out.

 

We need elche. Where is she?

 

I think you will find that you cannot manipulate the "one year ET unfair dismissal" rule like this. I'm 99.5% certain that if the notice you are entitled to takes you over the year then it counts. I agree that if this was instant dismissal for gross misconduct then she is under the year. Otherwise not.

 

If you think about it, an employer could effectively block an UD claim by opting to give PILON rather than let the person work their notice if this was not so.

 

Have a look here.....

 

http://www.businesslink.gov.uk/bdotg/action/detail?r.s=sc&r.l1=1073858787&r.lc=en&r.l3=1074200615&r.l2=1073876974&type=RESOURCES&itemId=1073793723

 

If her contract doesn't give a right to PILON then it is a breach of contract. Further reason why it can't be used to "get round" the one year rule.

 

In any case this is only relevant from the point of view of claiming unfair dismissal. Paying one week's notice when the contract requires eight would be unlawful deduction of wages and you can take this to an ET regardless of length of service.

Edited February 8, 2010 by Uncertain

[Uncertain]

Is PILON taxable ? I notice that that the entire amount was taxed in before payment.

 

Yes it is.

 

It is only compensation and redundancy that is not (within limits).

[nickoxford]

Thanks Uncertain

[elpulpo]

I think you will find that you cannot manipulate the "one year ET unfair dismissal" rule like this. I'm 99.5% certain that if the notice you are entitled to takes you over the year then it counts. I agree that if this was instant dismissal for gross misconduct then she is under the year. Otherwise not.

 

If you think about it, an employer could effectively block an UD claim by opting to give PILON rather than let the person work their notice if this was not so.

 

In any case this is only relevant from the point of view of claiming unfair dismissal. Paying one week's notice when the contract requires eight would be unlawful deduction of wages and you can take this to an ET regardless of length of service.

I thought the same, Uncertain. But if you google 'effective date of termination' that doesn't seem to be the case. If PILON is paid, then the EDT becomes that date, not the date that the notice period would have ended. It sucks. There might be a way of arguing round it though.

[nickoxford]

I think you will find that you cannot manipulate the "one year ET unfair dismissal" rule like this. I'm 99.5% certain that if the notice you are entitled to takes you over the year then it counts. I agree that if this was instant dismissal for gross misconduct then she is under the year. Otherwise not.

 

If you think about it, an employer could effectively block an UD claim by opting to give PILON rather than let the person work their notice if this was not so.

 

Have a look here.....

 

Notice periods | Business Link

 

If her contract doesn't give a right to PILON then it is a breach of contract. Further reason why it can't be used to "get round" the one year rule.

 

In any case this is only relevant from the point of view of claiming unfair dismissal. Paying one week's notice when the contract requires eight would be unlawful deduction of wages and you can take this to an ET regardless of length of service.

Thanks again Uncertain. So that I don't get "wrapped around the axle" on this one can you confirm I understand you correctly.

 

Whilst the letter dismissing my daughter states that dismissal is the sanction determined by the owner following her hearing and the subsequent statement posted earlier stating "This will take effect immediately and because of your length of service you will be paid one weeks pay in lieu of notice as per your statutory rights and the ACAS Code of Conduct.".

 

That the contract indeed supercedes this since the owner has clearly give notice (the incorrect notice at that) ?

[Uncertain]

I thought the same, Uncertain. But if you google 'effective date of termination' that doesn't seem to be the case. If PILON is paid, then the EDT becomes that date, not the date that the notice period would have ended. It sucks. There might be a way of arguing round it though.

 

I've just edited that post with a link to show how PILON can be breach of contract - this may help?

[Uncertain]

Thanks again Uncertain. So that I don't get "wrapped around the axle" on this one can you confirm I understand you correctly.

 

Whilst the letter dismissing my daughter states that dismissal is the sanction determined by the owner following her hearing and the subsequent statement posted earlier stating "This will take effect immediately and because of your length of service you will be paid one weeks pay in lieu of notice as per your statutory rights and the ACAS Code of Conduct.".

 

That the contract indeed supercedes this since the owner has clearly give notice (the incorrect notice at that) ?

 

Need to look at this in more detail and maybe you need some professional advice. I stick with my view that it has been held, for ET purposes at least, that you cannot manipulate the dates.

 

Your contract of employment cannot reduce your statutory rights (one week) but can increase them (eight weeks in this case). They can't turn this on and off as it suits them. As I see it there only options are GM (therefore instant dismissal) or eight weeks notice (as contract).

 

Does the contract reserve the right to PILON at their discretion? If not, see business link site.

Edited February 8, 2010 by Uncertain

[elpulpo]

I've just edited that post with a link to show how PILON can be breach of contract - this may help?

A fair point. I'd overlooked that PILON is a contractual matter. I'd presumed that an employer could use it at their discretion.

Things are looking up.

[Uncertain]

Nick

 

Can I make a couple of more general points that you and your daughter might like to consider.......

 

Where do you see this one going?

 

I think there is a very good chance you can get 7 weeks more money - not to be sneezed at.

 

You may be able to tip this into an ET unfair dismissal claim if they have messed up. But will you win it? Not for me to say but if I have to - 50:50.

 

If you do you will likely get some compensation but I suspect this will be modest.

 

None of this will get your daughter a decent reference and may attract some local publicity.

 

With a small company one of two things will happen. Either they will dig their heels in and try to defend the case themselves. Or, they will go to a solicitor and rapidly get a shock at the costs building up.

 

In this case you will probably end up agreeing some kind of settlement. The good point here would be that you could negotiate a reference BUT with a small company this would be very hard to police.

 

All of this will take a great deal of energy from you both if you go it alone or a lot of money if you hire a brief, unless you are insured.

 

Either way, very sadly, what you won't get is justice. By this I mean you may well get some compensation but the nursery owner won't be flogged in the market square nor will they be made to apologise.

 

Do give some careful thought to what is best long term.

 

I'm sure people on here will help as best they can if you decide to go the distance.

[BeauBrummie]

Nick

 

Can I make a couple of more general points that you and your daughter might like to consider.......

 

Where do you see this one going?

 

I think there is a very good chance you can get 7 weeks more money - not to be sneezed at.

 

You may be able to tip this into an ET unfair dismissal claim if they have messed up. But will you win it? Not for me to say but if I have to - 50:50.

 

If you do you will likely get some compensation but I suspect this will be modest.

 

None of this will get your daughter a decent reference and may attract some local publicity.

 

With a small company one of two things will happen. Either they will dig their heels in and try to defend the case themselves. Or, they will go to a solicitor and rapidly get a shock at the costs building up.

 

In this case you will probably end up agreeing some kind of settlement. The good point here would be that you could negotiate a reference BUT with a small company this would be very hard to police.

 

All of this will take a great deal of energy from you both if you go it alone or a lot of money if you hire a brief, unless you are insured.

 

Either way, very sadly, what you won't get is justice. By this I mean you may well get some compensation but the nursery owner won't be flogged in the market square nor will they be made to apologise.

 

Do give some careful thought to what is best long term.

 

I'm sure people on here will help as best they can if you decide to go the distance.

 

Agree with this in its entirety,

 

You may well feel that an injustice has been done and you are up for "revenge" but quite often the cases when looked at in the cold light of day you just have to bite the bullet.

 

As I posted earlier, a compromise agreement is most likely outcome but you need some mud to throw at them and make it stick. So follow standard ACAS procedures and await the employers responses. Look at your own evidence and weigh up the options.

 

Lots of good people on here will help if they can.

 

 

Beau