Sacked on the spot without warning

[becky2585]

Ahhh I see.

 

The difference I can see in that case is that no edt was given in the letter. To me, the case implies that the employee was on garden leave rather than being paid in lieu as you were. They GAVE him 12 weeks notice but informed him he wouldn't have to work it. If you're sacked on the spot but paid in lieu then you haven't been given notice. It's a subtle but important difference.

 

What stage are you at in proceedings? Sorry for all the questions just curious

[gazhodge1981]

No problem, i am at the stage where :-

 

The claimant shall set out in writing what remedy the Tribunal is being asked to award. The claimant shall send a copy to the respondent. The claimant shall include any evidence and documentation supporting what is claimed and how it is calculated. The claimant shall also include information about what steps the claimant has taken to reduce any loss (including any earnings or benefits received from new employment).

 

This is the first stage after the claim was excepted.

 

In terms of the case Adams v GKN Sankey Ltd [1980] IRLR 416 i am sure i have read somewhere that it can be looked at two ways, one that the Pilon ended the employment there and then and two that if the claimant can show that the payment was made but had documents to suggest that it should extend the notice period. Will check on this again.

Is there any really good templates for a schedule of costs i could use??? i have seen a few but nothing that stands out.

[honeybee13]

Hello becky and welcome to the forum.

 

I hope you don't mind me asking you this, but as it's an internet forum and you've just arrived, would you be able to tell us what sort of experience you have of ET matters please?

 

I'm sure you'll understand that posters here are in a difficult position and need to know who is advising them. No-one expects you to give personal details or identify yourself, but it might reassure Gaz to know.

 

My best, HB

[gazhodge1981]

In a preliminary hearing, the tribunal reviewed the relevant law citing both Manx and English decisions on this point. In particular, reference was made to Leech v Preston Borough Council,(1) in which Justice Waite indicated that tribunals have to draw an appropriate influence as to the sense of the expression 'payment in lieu of notice' and in particular "it is pre-eminently a matter however for the tribunal in every case to determine in what sense the expression has been included in the written or spoken words of dismissal".

 

The Adams v GKN Sankey Ltd(2) decision explained that a payment in lieu of notice can effectively mean one of two things, namely: (i) a dismissal with notice but given a payment in lieu of actually working out that notice; or (ii) an immediate dismissal with payment in lieu of the notice of which the employee has been deprived.

 

The effective date of termination depends on which scenario applies – it is either at the end of the notice period or the date of the dismissal.

 

The tribunal found the wording of the termination letter to be clear and the effective date of termination to be February 8 2010. The relevant tax form and accrued holiday pay was also calculated using February 8 2010 as the end date. Sharon Roberts, the tribunal chair, stated in her judgment that the payment in lieu of notice may well amount to a payment of damages for breach of contract for breaching the requirement to give one month's notice, but that the payment in this case did not have the effect of creating a different effective date of termination.

 

The tribunal commented that an employee in these circumstances might have a claim for damages for breach of contract if a sum equivalent to one month's notice or allowing him or her to work that one month had not been provided. However, it was noted that in these circumstances the rights change from a right to be employed to a right to claim damages on the date of termination.

 

Therefore, although there remains small amount of doubt with regard to the situation, the tribunal appears to have found decisively in favour of the English position, so that a payment in lieu of notice does not generally operate to extend the length of service to take an employee over the 12-month unfair dismissal threshold. If the situation were different and the extra statutory one week's minimum notice took an employee over the threshold, then clearly a claim would be possible. Employees in these circumstances should not despair since a possible claim in contract remains.

 

I found this regarding Adams v GKN Sankey Ltd

 

Thanks HB

[gazhodge1981]

Just another quick question from the 30th June 2011 to 16th January 2012 is 29 weeks as close as, could i put 29 weeks instead of 26 weeks or is that to much???

Also I am not getting this age 1 years’ continuous employment, age at EDT:[1] 30,multiplier:[2] 1,

[1] Effective date of termination.

[2] The multiplier is a figure derived from the claimant’s age and length of service: Employment law: an adviser’s handbook para 18.16.

This seems to appear on all the schedule of loss examples i have looked at and don't really get it does anyone know what is means please?

[becky2585]

Hello

 

Without giving too much away, I work in the employment department of a large law firm, assisting mainly on bringing cases for Claimants, with the odd bit of Respondent work.

 

I'm interested in this thread because the same issue cropped up at work recently; the outcome was that you could not use the notice period stipulated in the individual's contract (although its different here) and therefore the claim failed.

 

The above reference comments that a breach of contract claim is possible. That's a separate entity to an unfair dismissal claim. Breach of contract claims can be brought at any point from the first day of employment.

 

To calculate your basic award, you use a multiplier based on your age (at 30, you use the multiplier of 1 your weekly pay (up to £400) and your length of service (use 1). I think that would be what the handbook is referring to.

[honeybee13]

Thank you for telling us, Becky. I hope you understand why it helps us to know that, and of course we wouldn't expect you to give much away .

 

My best, HB

[gazhodge1981]

Thanks for the reply Becky,

 

From what you have said above i might be struggling a little I might have to just go down the line with this and see if they offer a settlement at some point,

If goes to the hearing then all i can hope for is that they don't pick up on it or that we get a landmark ruling (well maybe in appeal).

The only thing i can see at the moment is that they have paid holiday pay up to the 30th June and not May,.

[gazhodge1981]

Hi, When doing the calculations is it best to do the Tax and national insurance now or leave it till later on???

[gazhodge1981]

1. Compensation for unfair dismissal

 

(a) Basic award[1]

a week’s pay: £237.50

1 years’ continuous employment

age at EDT:[2] 30

multiplier:[3] 1

 

1 x £237.50 £237.50

 

(b) Compensatory award[4]

Net

Take home pay: £237.50 p/w £6,887.50

Commission: £106.04 p/w £3,075.16

Car Benefit: £42.69 p/w £1,238.01

Holiday Pay £18.20 p/w £527.80

 

30 June 2011 to 16 January 2012

29 weeks £11,728.47

Gross

Tax £850.69

National Insurance £540.42

Gross Total £1391.11

loss of statutory rights[5] £300.00

TOTAL £10,637.36

 

[1] See generally Lewis, Employment law: an adviser’s handbook (5th edn, 2003, Legal Action Group) paras 18.15–18.19.

 

[2] Effective date of termination.

 

[3] The multiplier is a figure derived from the claimant’s age and length of service: Employment law: an adviser’s handbook para 18.16.

 

[4] See generally Employment law: an adviser’s handbook paras 18.24–18.27, but note that the House of Lords has now ruled that in an ordinary unfair dismissal case there can be no compensation for injury to feelings: Dunnachie v Kingston upon Hull City Council [2004] IRLR 727.

 

[5] See Employment Law: an adviser’s handbook para 18.38.

 

 

Can I just ask how this looks please and point out any mistakes

[gazhodge1981]

Would it be possible to get a list of everything that goes with the schedule of loss just to make sure i have everything.

[jtors65]

what is a loss of earnings or schedule of loss and how do you work that out, does your employer have to pay you that?

[honeybee13]

jtors, please. You're not at that stage yet and whichever lawyer you decide to use should advise you.

 

How many threads do you need here please? You have at least 2 which is enough for most people. CAG rules say we shouldn't hijack other people's threads.

 

My best, HB

[jtors65]

sorry i'm so stressed out the presure and everything is just too much for me

[gazhodge1981]

HB is like the Terminator on the CAG world lol, step out of line and your in trouble.

 

Can someone give me a list of everything i need with the schedule of loss please, I think i have it but want to make sure:-

 

• Schedule of loss
  

 

• How the schedule was worked out (figures)
  

 

• Remedy
  

 

• How I have tried to avoid future loss (job applications
  

Also can someone tell me is it best to take tax of at this stage or leave it till near the hearing???

 

Also when I send them a copy of this like i do to the ET, do i send them the job stuff?? (future loss)???

[honeybee13]

HB is like the Terminator on the CAG world lol, step out of line and your in trouble.

 

That's a little harsh, Gaz . I was just trying to stop your thread being hijacked.

 

My best, HB

[gazhodge1981]

Sorry HB Thanks for the policing I was only playing about the terminator thing

[gazhodge1981]

Hi all,

 

Got a letter from the ET today, It says that the respondent has responded to the claim and they say the length of service was only 11 months.

The ET have asked me to respond to there claim of the 11 months by 13th October. The dates that they have used are wrong as they say my last day was 3 days earlier than it was

 

Would it be possible to get some advice on how to respond please, should i say that this is incorrect??? or say the dates they have said are wrong???

[stinkysrevenge]

Hi Gaz,Lurking a long time, reading the thread through (unbelieveable!) but thought I would throw my 2p in....

Soooooo ex-employers claim the length of service is 11 months, but the pay you have received puts you (by 2 days) past the 12 month mark. And now they have come saying your actual leaving date was 3 days earlier than it was, which would make your length of service 1 day shy of 12 months service which entitles you to statutory rights? Interesting, no? Awfully convenient for them, isn't it?

 

I don't know what the better-educated-than-me would suggest you do (and I'm not being sarky, because they are, I'm just an average joe) I would write back to the tribunal and state that fact. Do you have the letter they gave you when you left? Is it dated with the correct day? And you have the email with your starting date to prove when you started. Send in copies with your letter. Just my suggestion.....

Edited October 4, 2011 by stinkysrevenge
big fat editing nightmare

[CONCILLIATOR]

Stinkysrevenge’s cynicism is dead on. The employer trying to manipulate the facts to suit their argument and support their case.

 

It would be remiss of you, in this case, not to follow Stinky’s advice to the letter.

Edited October 4, 2011 by CONCILLIATOR
Add Spacing

[gazhodge1981]

Hi Gaz,Lurking a long time, reading the thread through (unbelieveable!) but thought I would throw my 2p in....

Soooooo ex-employers claim the length of service is 11 months, but the pay you have received puts you (by 2 days) past the 12 month mark. And now they have come saying your actual leaving date was 3 days earlier than it was, which would make your length of service 1 day shy of 12 months service which entitles you to statutory rights? Interesting, no? Awfully convenient for them, isn't it?

 

I don't know what the better-educated-than-me would suggest you do (and I'm not being sarky, because they are, I'm just an average joe) I would write back to the tribunal and state that fact. Do you have the letter they gave you when you left? Is it dated with the correct day? And you have the email with your starting date to prove when you started. Send in copies with your letter. Just my suggestion.....

 

Thanks Stinkysrevenge for the great reply

 

When i said 3 days short i should have been more clear, the letter they gave me at the time said 31/5/2011 but on there response they put 28/5/2011 but paid all pay till 30/6/2011 (12 months) but in the response claimed a PILON payment but with no contract i doubt it would be in there.

So employment starts 28/6/2010, day told i was being sacked 31/5/2011, i was paid that day and then given a cheque to pay me all pay plus holiday pay which i would have only got had i worked till 30/6/2011.

If I can get passed this 12 month problem the case is won tbh

 

I have been looking at cases like Raspin vs United News Shops ltd, to see if they had follow the Acas rules on disciplinary, then it would have taken longer then 3 weeks to do which would put me over the 12 months.

 

Other than that all i can see is wrongful dismissal unless i am missing something which is quite easy

[CONCILLIATOR]

In the absence of a disciplinary procedure the ACAS recommendations are taken by Tribunals as the very basic minimum.

 

You can show that in your case no semblance of a procedure was followed, no right of reply etc.

 

Clearly Unfair Dismissal and clearly eligible to be heard by an Industrial Tribunal.

[gazhodge1981]

In the absence of a disciplinary procedure the ACAS recommendations are taken by Tribunals as the very basic minimum.

 

You can show that in your case no semblance of a procedure was followed, no right of reply etc.

 

Clearly Unfair Dismissal and clearly eligible to be heard by an Industrial Tribunal.

 

Thanks for the reply Concilliator

 

Would i respond to the ET request with that at this stage???

[CONCILLIATOR]

Always respond to ET requests.

 

Outline clearly and respectfully Stinky's conclusions on times and dates etc and your own conclusions on the so called procedure that your employer followed.

 

The Tribunal should find in your favour in less than 5 minutes if nothing but the above is at issue.

[Paul Brendon]

I think the major issue here is that as a company, they failed to provide you with a contract of employment, which, by law- they have to as soon as reasonably possible.

 

So how can they terminate your employment without providing with a written contract and accompanying employee handbook?

 

Seems very illegal to me, and THIS is the point I would stress to the solicitor.