Let Go After 51 Weeks - Breach of Contract??

[Luxxinterior]

Good Afternoon,

I would appreciate some advice please as I am so frustrated and annoyed at what recently happened to me.

 

I have worked at a company for almost the last year (51 weeks), and with no warning other than a meeting request 15 minutes beforehand, I was told I did not pass my probationary period ( I thought my probation period was 6 months...its not specifically mentioned anywhere in my contract, though it does say in my offer letter that there would be an appraisal after 6 months...which has obviously come and gone)... and had to exit immediately. I was given a weeks notice, but was told I did not have to work it.

 

I have never been on any performance management, or had any issues regarding my performance with HR... in fact as no-one had mentioned anything to me beforehand, I assumed I was doing quite well...then I was let go!!

 

I know being less than a year there limits my rights, but when a company has performance management procedures and disciplinary procedures in place to follow, can they just do this to me??

 

Look forward to some responses....thanks in advance

[Emmzzi]

does your notice period take you to or over 52 weeks? Are you specifically on garden leave or did they actually give you "pay in lieu of notice"?

 

and what notice period is in your contract?

[Luxxinterior]

Notice Period - Takes me under the year

No Mention of Garden Leave - Just dont have to work notice... that period expired yesterday - I have not even had a letter from them yet to confirm it.

Notice Period for a year or less is 1 week

 

Regards

[Emmzzi]

I'm afraid that all looks legal to me.

[Luxxinterior]

Had a feeling that was the case...doesnt seem just though...especially when there have been no issues throughout the first year.

 

Thanks for your response though

[elche]

Hi Lux,

 

If you worked there for 51 weeks, then unless you were dismissed for gross misconduct, (and this was justified) then if you were given no notice as you seem to suggest, your effective date of termination will be extended by the one week's notice that you were due:

 

Where the employer terminated the employee's contract without giving at least the statutory minimum notice, then the effective date of termination is extended as if that minimum notice had been given. Therefore, where an employee is dismissed summarily after 51 weeks' employment, one week's statutory minimum notice would be added when determining the effective date of termination. That employee would therefore be treated as having 52 weeks' continuous service (ie sufficient to bring an unfair dismissal claim).

 

Hope this helps

 

Che

[becky2585]

If it was bang on 51 weeks, your statutory notice would take you to 52 weeks. Even a day under, and sadly it's not enough.

 

Was it bang on 51 weeks when you were dismissed?

[Luxxinterior]

Hi Lux,

 

If you worked there for 51 weeks, then unless you were dismissed for gross misconduct, (and this was justified) then if you were given no notice as you seem to suggest, your effective date of termination will be extended by the one week's notice that you were due:

 

Where the employer terminated the employee's contract without giving at least the statutory minimum notice, then the effective date of termination is extended as if that minimum notice had been given. Therefore, where an employee is dismissed summarily after 51 weeks' employment, one week's statutory minimum notice would be added when determining the effective date of termination. That employee would therefore be treated as having 52 weeks' continuous service (ie sufficient to bring an unfair dismissal claim).

 

Hope this helps

 

Che

 

Just worked it out... i was there 50 weeks and 4 days. They gave me a weeks notice, but no notice that I was in any way in trouble or facing anything like this

[becky2585]

Just worked it out... i was there 50 weeks and 4 days. They gave me a weeks notice, but no notice that I was in any way in trouble or facing anything like this

 

So you are unfortunately three days under.

[elche]

Just worked it out... i was there 50 weeks and 4 days.

 

So sorry to hear that. I think they may have known exactly what they were doing, as there is a technical argument that actually once you hit 50 weeks and 5 days you have your one years service.

 

I know it sounds bizzare, but normally one day is added because, "...(1) unless (a) there is an express term in the employment contract dealing with when the notice period starts, or (b) the agreement that notice is to start immediately can be construed from the wording of the contract and the wording of the notice letter set in the factual matrix of the case..." (which is seldom the case), notice runs from the day after it is given,

 

and, another day is 'added' on the principle that if I start work on the 1st January and my effective date of termination is the 31st December I have one years continuous employment. (Pacitti Jones v O'Brien)

 

I've never seen both those arguments run together but see no reason why the proposition would not be good law. In fact your employer may well have known this as they dismissed you one day short of your ('legal') year.

 

Sorry

 

Che

[becky2585]

So sorry to hear that. I think they may have known exactly what they were doing, as there is a technical argument that actually once you hit 50 weeks and 5 days you have your one years service.

 

I know it sounds bizzare, but normally one day is added because, "...(1) unless (a) there is an express term in the employment contract dealing with when the notice period starts, or (b) the agreement that notice is to start immediately can be construed from the wording of the contract and the wording of the notice letter set in the factual matrix of the case..." (which is seldom the case), notice runs from the day after it is given,

 

and, another day is 'added' on the principle that if I start work on the 1st January and my effective date of termination is the 31st December I have one years continuous employment. (Pacitti Jones v O'Brien)

 

I've never seen both those arguments run together but see no reason why the proposition would not be good law. In fact your employer may well have known this as they dismissed you one day short of your ('legal') year.

 

Sorry

 

Che

 

Hi che

 

I'm curious, do you have an authority for the 50+5 point? I've never come across this before - as far as I was aware, the 51 weeks point was fairly clear cut and I've never seen a case to the contrary.

[postggj]

on a side note for future people reading this thread

 

for employees starting new employment on or after 6 April 2012 the qualifying period for the right to claim unfair dismissal will be two years

[elche]

Hi cheI'm curious, do you have an authority for the 50+5 point? I've never come across this before - as far as I was aware, the 51 weeks point was fairly clear cut and I've never seen a case to the contrary.

 

Hi Becky, yeah I know I was shocked when first told this a while ago.

 

Yes authority for notice running the day after being given is from Wang v University of Keele (2011), and the second authority is a Scottish EAT case referenced in my post above Pacitti Jones (employer appellant) and O'Brien (the employee).

 

An oft overlooked point me thinks ...... but as far as I know correct... happy to be corrected though

[johnvernon74]

There is no reason why you can not write a grievance asking why you were not informed of performance issues. Did you have any issues in work? Were you off sick? Do you have a disability? Was there any equality issues that could allow you yo consider a claim against your employer? Other than that the law is on the side of the employer. If none of the above apply Id be asking for a reference at least.

[becky2585]

Hi Becky, yeah I know I was shocked when first told this a while ago.

 

Yes authority for notice running the day after being given is from Wang v University of Keele (2011), and the second authority is a Scottish EAT case referenced in my post above Pacitti Jones (employer appellant) and O'Brien (the employee).

 

An oft overlooked point me thinks ...... but as far as I know correct... happy to be corrected though

 

Oh I see - I do remember those cases!

 

Maybe it's because I come across arguments over notice frequently, but to me, both make perfect sense. Notice can't start to run until the next day as that's pure logic. It has to apply to full days, not fractions. So you have to have 51 weeks service from the day after notice is given. What I do wonder is, based on that principle, if no notice is given whether that would follow - ie if an employee was summarily dismissed but paid in lieu of notice, surely logically it doesn't "run" and therefore it would be effective of that day?

 

Interesting point, nonetheless!

 

So in short, if notice is given, an employee would need to have 50+6 weeks service, but if summarily dismissed, I would imagine it would be 51 weeks?