Sacked on the spot without warning

[Bigredbus]

Unfortunately have to agree (again!) with the lady still seating above me!

 

The more points you can add to that letter, the better your negotiating position!

[gazhodge1981]

Can you not think of any reason at all as to why your ER has dismissed you?

Are there any interpersonal issues, have you fallen out with anyone?

Sorry to have to ask, I don't want to come across as if I don't believe you.

Obviously there is some reason for their decision, it seems strange that this is so out of the blue.

 

I got on really well with everyone, TBH the worse part of leaving was the people i worked with

I don't mind you asking Rachel

I know the business has had some company in looking at accounts and stuff but nor the owner or managers have said anything about it. We all know they are there but it was like the secret service. I did ask the sales manager what they were doing and there for a few weeks ago and he said don't worry it wont effect us

I did get the feeling it wasn't the sales managers decision as he said straight away that it was not personnel and if i needed a reference or for him to speak to someone he would no problem.

[phoenix11]

One reason they took someone else on may be harder to find out - ie, they pay less basic and higher commission.

 

That way, if the sales person doesn't sell anything, the company is shelling out less per month and it's supposed to give the SE the incentive to sell sell sell!

 

If they do achieve sales, the SE is happy because they get their money - eventually and the company have a better cash flow situation. Also, is it possible that the commission works on 'shared' scheme whereby the SM gets a slice of the pie on all cars sold?

 

If so, higher commission versus lower salary for the SE means the SM gets a larger slice.

[gazhodge1981]

One reason they took someone else on may be harder to find out - ie, they pay less basic and higher commission.

 

That way, if the sales person doesn't sell anything, the company is shelling out less per month and it's supposed to give the SE the incentive to sell sell sell!

 

If they do achieve sales, the SE is happy because they get their money - eventually and the company have a better cash flow situation. Also, is it possible that the commission works on 'shared' scheme whereby the SM gets a slice of the pie on all cars sold?

 

If so, higher commission versus lower salary for the SE means the SM gets a larger slice.

 

As far as i am aware he gets a % of profit.

 

As for what the other (new) will get paid i have no idea. surly they would pay him the same as the others as we were all on the same money and pay structure.

[RachelMD]

A Reference!?!?! Really!!?

Why? Why would they give you a reference? They've just dismissed you on the spot.

 

Right. Before you do anything else, certainly before you make any noises towards taking legal action against them, get a reference from the Sales Manager.

Or, get someone to contact him as a potential employer and ask for one.

 

If they give you a 'glowing', and I suspect they will, then they're stuffed.

[Bigredbus]

LOL... The lady has spoken... Amen!

[gazhodge1981]

A Reference!?!?! Really!!?

Why? Why would they give you a reference? They've just dismissed you on the spot.

 

Right. Before you do anything else, certainly before you make any noises towards taking legal action against them, get a reference from the Sales Manager.

Or, get someone to contact him as a potential employer and ask for one.

 

If they give you a 'glowing', and I suspect they will, then they're stuffed.

 

your just to good Rachel

[gazhodge1981]

with my campaign to get a glowing reference which is being email to me

 

I have been told that my replacement started yesterday, some 4 working hours after i was sacked

[RachelMD]

So you're asking the SM for a reference?

[gazhodge1981]

I have asked the business manager or his number 2 and he said no problem and i have rang the SM mobile asking him to ring me.

 

He will give me one.

 

Just spoken to him and he is going to email me one throught bu the end of the day

Edited June 2, 2011 by gazhodge1981

[honeybee13]

These people are crazy or stupid. But it can only help you, Gaz. Go for it.

 

My best, HB

[gazhodge1981]

Right sorry for not being on yesterday, been busy applying for jobs

 

Here is what i have so far:-

 

Wage slip for May,

Cheque and wage slip for June,

Letter saying they are terminating my employment,

P45

Job role/description - done by me

One glowing reference so far with another to come

 

Once i get the other reference which should be today or tomorrow, what is my next step?

I am waiting for 3 different solicitors to contact me back on Monday for some advice but i feel more than happy to do it my self

[watchinginvestigation2011]

Great to hear about the glowing references as is not normally received with sacked on the spot:-D

 

Go get em:lol:

[Atlas01]

reading the thread i was going to say it could be important whether you were actually bad at your job and always late but as your angle here is procedural technicality it may not matter.

 

just get on the et website and fill in the et1 and detail on it how you have accrued the necessary 12 months and go for automatic unfair dismissal for failure to hold a disciplinary hearing.

 

a replacement will only show they had chosen to dismiss before telling you, it shows no "fair hearing"

 

just get the claim in, the others round here are 100% bang on through the entire process. if the tribunal accept i see an easier case, if they don't your not left running around chasing a lost cause

[Sidewinder]

 

go for automatic unfair dismissal for failure to hold a disciplinary hearing.

 

 

That is no longer an acceptable cause of action. Procedural failings may now only be taken into account at the award stage following successful action on other grounds. The OP's case is that he has been dismissed for unfair reasons, ie capability and poor timekeeping where there was no evidence nor previous history of these offences and where without a previous history it would be unfair to dismiss for a first offence. You can't claim automatically unfair dismissal for procedural deficiencies alone.

[gazhodge1981]

That is no longer an acceptable cause of action. Procedural failings may now only be taken into account at the award stage following successful action on other grounds. The OP's case is that he has been dismissed for unfair reasons, ie capability and poor timekeeping where there was no evidence nor previous history of these offences and where without a previous history it would be unfair to dismiss for a first offence. You can't claim automatically unfair dismissal for procedural deficiencies alone.

 

It still makes the hammer bigger at the end

 

Once i get this other reference i will be ready to put everything together and take it from there.

[honeybee13]

It's looking good, Gaz.

 

My best, HB

[gazhodge1981]

Hi all,

 

I have spoken to a couple of solicitors over the last few days and i am hitting a brick wall with the two i have spoken to They give me the feeling they can't be bothered to do any work.

 

The best advice on of them gave me was that if i wanted to have a go then submit the ET1 form myself Thanks. They can't seem to get passed this statuary notice (one week).

 

I have explained the PILON payment they have made and the letter i have and no employment particulars. the term DIY seems to be where i am

 

Can i ask, now i have:-

 

Wage slip for May,

Cheque and wage slip for June,

Letter saying they are terminating my employment,

P45

Job role/description - done by me

One glowing reference so far with another to come

 

Should i write to them asking for for the missing info or just complete the ET1 form??

Also is there anywhere to talk me thought the form???

[2ltr16valve]

Cant offer any advice Im afraid, just moral support. I have just sat and read the last 6 pages and I am gobsmaked ! Sounds like your well rid of your former employer bud, they have no respect or morals

 

Best of luck, go get them !!

[gazhodge1981]

Right

 

I now have two great references in hand from my sales and business manager.

The Letter that was handed to me was signed by the sales Manager.

 

Also over the last few days i have been doing a lot thinking and i have found out that this company that has come in to look at figures, they interviewed everyone in the sales department but they didn't bother with me I was the only one not to be interviewed or spoken to.

 

I have been doing a lot of reading over the last few days due to having time on my hands but i can't seem to find any help really regarding the ET1 form and how i should fill it out.

 

Also I have been looking a bits on the net and i am unsure regarding the PILON payment and when my employment will be class as terminated. Some say there and then but it will be breach of contract if the previsions are not there for a Pilon payment and some say it can be added to my employment which would make me over 12 months

 

http://www.payandbenefitsmagazine.co.uk/pab/article/legal-comment-pilons-sufficient-to-terminate-contracts-12318802 - this case has put doubt in my mind

I will copy and paste the article if i am not allowed to link or you don't want to click the link.

[Sidewinder]

Also I have been looking a bits on the net and i am unsure regarding the PILON payment and when my employment will be class as terminated. Some say there and then but it will be breach of contract if the previsions are not there for a Pilon payment and some say it can be added to my employment which would make me over 12 months

 

The issue here is the Effective Date of Termination. Had the company terminated your employment and handed you a single wage slip with May's wages plus a further amount EQUIVALENT to a month's wages, making it clear that your termination was immediate and that the extra money was in compensation for not being given notice, then the EDT would be the date on which you were told to leave. In giving you two separate wage slips, two separate payments, and no explanatory letter to say that the June wage slip was anything other than a payment AS IF YOU WERE WORKING THE NOTICE PERIOD REQUIRED, then the employer have in essence given written confirmation that this was a normal notice payment (they have even deducted Tax & NI so there can be no claim that this was a payment of 'damages'. That would mean that the EDT becomes the last date for which you receive wages - ie at the end of June.

 

The relevant case law for this is Adams v GKN Sankey Ltd [1980] IRLR 416, EAT where the issue was addressed of what inference should be drawn where an employee is dismissed without notice and whether any payment given in lieu of notice should be taken as extending the length of service of the employee or otherwise. In the Sankey case, the Tribunal decided that the letter of termination made clear the effective date of dismissal, and the fact that the final payslip and associated deductions had been made using the date of dismissal rather than the later date as a base as the clincher. In your case, although the letter of termination may say that the DISMISSAL was immediate, they have provided sufficient contradictory evidence by way of a payslip stating that it represents a payment for JUNE - and that normal deductions have been made from that payment as if you would have been working.

 

This is at the core of your ET1 - that the employee had worked for [Company] since [Date] and having had his employment terminated unfairly with an Effective Date of Termination of [Date on which the June pay period expired], witnessed by the payslip handed to the Plaintiff clearly demonstrating that the employer had made allowance for the four week notice period which was understood to be the contractual entitlement.

 

The ET1 will then go on to detail how and why the dismissal was Unfair in that instant dismissal was not a sanction reasonably available to the employer for the reasons given for dismissal. The issues stated by the employer would be examples of misconduct where a warning and target for improvement would be appropriate.

 

The Plaintiff had never previously been warned that either timekeeping or performance were a matter of concern to the employer - indeed the references included in the evidence bundle are testament to the fact that the employer has never had anything other than praise.

 

The Plaintiff asserts that the employer dismissed the Plaintiff unfairly solely as it was convenient to do so in the belief that the requisite length of service had not been accrued to bring a claim for Unfair Dismissal and in order to create a vacancy for another. The Plaintiff has become aware that another person had been employed specifically for the Plaintiff's role before he had even learned of his dismissal.

 

NOTE - I am not necessarily saying that these SHOULD be the POCs or that they are the only POCs - they are merely examples off the top of my head (and don't forget that you will also need to include the fact that the employer never gave a written Statement of Employment Particulars as you will be claiming for that as well). Others will no doubt have suggestions for the POCs and these will no doubt be better with more time to consider them. This should though give you an idea. There are notes here http://www.direct.gov.uk/en/Employment/ResolvingWorkplaceDisputes/Employmenttribunals/DG_180301 which may also assist you.

[gazhodge1981]

Thanks Sidewinder your a star I will have a look at the case and the link

[Bigredbus]

May:- Payslip dated 31/05/2011 - Money went straight into the bank as normal.

Basic Pay £950

Commission £470

Tax -£231

NI -£98

Total Pay £1420

Total Deductions £329

Total Pay £1090

 

Year to Date:-

Gross £2480

Taxable £2480

Tax £387

Ee NI £153.12

ER NI £179.66

 

Cheque and Payslip:- Both dated 31/05/2011 along with letter - day i got potted

Basic Pay £950

Commission £220

Holiday pay £237.50 (End period? - 31 May 2011, or 30 June 2011)

Car Benefit £185

Tax -£318.60

NI -£191.10

Total Payment £1592.50

Total Deductions £509.70

Total Pay £1082.80

 

Year to Date:-

Gross £4072.50

Taxable £4072.50

Tax £705.80

Ee NI £344.22

ET NI £399.43

 

Letter:-

 

With Immediate effect we are terminating your employment with **** due to capability (poor performance) and conduct (poor time keeping) we had you a cheque which includes basic wage for four weeks, commission due, holiday pay (1 week) p11d rebate for the loss of fuel and car allowance for one month.[/QUOTE]

 

____________________________________________________________

 

I believe your solicitors are having trouble with your effective date of termination (EDT)... and if that one month payment could be construed as payment in lieu of notice (PILON), which would extend your EDT to 30 June 2011, thus giving you statutory rights and a possibility to claim unfair dismissal. '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'. The letter is clear as per te termination date (?)... being with immediate effect...

 

However, the company has not serve you with a statement of employment particulars within the prescribed time, therefore being silent about your notice period. A little reminder... If the employee is dismissed with notice, but is not required to work during the notice period (gardening leave), the EDT is the date of expiry of the notice period (ie. at the end of the gardening leave period), even if the employee is immediately given pay for the full notice period at the start of the gardening leave.

 

Now, can that payment made for June 2011 be construed as payment in lieu of notice? We know that the statutory notice is one week... but can we infer, from that payment made for June 2011 that your notice period is contractually one month?...

 

Let us look at what PILON is... Payment in lieu of notice - or PILON - is money paid to you as an alternative to being given your full notice. It can either be set out in the contract as an option for your employer or it may simply be paid to cover any potential damages for breach of contract. If there is a pay in lieu of notice clause in your contract, the amount you will get will normally be set out there. If not, it is up to you to agree an amount, sometimes you may be willing to accept a small amount if it is in your interests to leave early. The amount you will get will normally cover everything that you would have earned during your notice period. This will normally cover your basic pay and may include other things like commission and compensation for the loss of benefits, like personal use of a company car, phone, or medical insurance. Your employer might instead decide to give you the use of your benefits for the notice period.

 

The payslip for June 2011 incorporates both pay and benefits, plus a week holidays... Now, we know that 'Gaz' took 7 days holidays for this holiday period (2011)... and if we use 'BERR' holiday calculator, he accrued 11.66 (rounded t 12 days) days holidays for the first 5 months of the year. He took those 7 days, threfore being left with 5 days accrued. The payslip incudes 'Holiday Pay' amounting to £237.50... and it is where we need a breakdown of that amount in order to determine the end period... Is the employer paying for 5 days (end period on 31 May) or for 7 days (end period on 30 June). When the employer states 'holiday pay (one week)... does this mean working week (possibly 5 days) or a calendar week (7 days)? Should the end period for the purpose of calculating the holiday pay be 30 June, then there is a strong argument as per your notice period extending beyond the statutory one week and we could construe that your employer intended to give you a month notice...

[gazhodge1981]

May:- Payslip dated 31/05/2011

 

I believe your solicitors are having trouble with your effective date of termination (EDT)... and if that one month payment could be construed as payment in lieu of notice (PILON), which would extend your EDT to 30 June 2011, thus giving you statutory rights and a possibility to claim unfair dismissal. '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'. The letter is clear as per te termination date (?)... being with immediate effect...

 

However, the company has not serve you with a statement of employment particulars within the prescribed time, therefore being silent about your notice period. A little reminder... If the employee is dismissed with notice, but is not required to work during the notice period (gardening leave), the EDT is the date of expiry of the notice period (ie. at the end of the gardening leave period), even if the employee is immediately given pay for the full notice period at the start of the gardening leave.

 

Now, can that payment made for June 2011 be construed as payment in lieu of notice? We know that the statutory notice is one week... but can we infer, from that payment made for June 2011 that your notice period is contractually one month?...

 

Let us look at what PILON is... Payment in lieu of notice - or PILON - is money paid to you as an alternative to being given your full notice. It can either be set out in the contract as an option for your employer or it may simply be paid to cover any potential damages for breach of contract. If there is a pay in lieu of notice clause in your contract, the amount you will get will normally be set out there. If not, it is up to you to agree an amount, sometimes you may be willing to accept a small amount if it is in your interests to leave early. The amount you will get will normally cover everything that you would have earned during your notice period. This will normally cover your basic pay and may include other things like commission and compensation for the loss of benefits, like personal use of a company car, phone, or medical insurance. Your employer might instead decide to give you the use of your benefits for the notice period.

 

The payslip for June 2011 incorporates both pay and benefits, plus a week holidays... Now, we know that 'Gaz' took 7 days holidays for this holiday period (2011)... and if we use 'BERR' holiday calculator, he accrued 11.66 (rounded t 12 days) days holidays for the first 5 months of the year. He took those 7 days, threfore being left with 5 days accrued. The payslip incudes 'Holiday Pay' amounting to £237.50... and it is where we need a breakdown of that amount in order to determine the end period... Is the employer paying for 5 days (end period on 31 May) or for 7 days (end period on 30 June). When the employer states 'holiday pay (one week)... does this mean working week (possibly 5 days) or a calendar week (7 days)? Should the end period for the purpose of calculating the holiday pay be 30 June, then there is a strong argument as per your notice period extending beyond the statutory one week and we could construe that your employer intended to give you a month notice...

 

All my wage slip gives is the amount and the letter they gave me says one weeks holiday which would cover me for 7 days if i was to take a week off.

 

The payment they have made me would have to be a PILON payment and not a breach of contract due to deductions on the amount??? or have i got that wrong???

 

The letter has a termination date on it of 31/5/2011, 28 days short of 12 months.

[Bigredbus]

PILON is only taxable if provided for in your contract. Therefore, we could assume that your employer is paying contractual PILON, due to the payment being taxed.

 

But where we need detail is as per that holiday payment... is your employer paying 7 days, or 5 days... ie. if you work a 5 days week and then be off at the week end, then a week's work is 5 days, thus taking a week off would mean 5 days holidays, plus 2 days off (ie. weekend)... and if it is the case, your EDT would be 31 May 2011, date of that letter...

 

What you need to do is go back to your payslip paying for he last holidays you took in this period (2011) and compare the payments... if you were paid the same amount, then your employer paid 7 days holidays for June 2011, if the amounts differ, then he may have paid for 5 days!

Edited June 10, 2011 by Bigredbus