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Kris.S

possibly unfairly dismissed during training period of a job, advice?

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Hello, I recently started training as an MDEC for a company in Sunderland.. on the second night I was due in, one of my teeth snapped clean in two, exposing the nerve and obviously causing me a great deal of pain, I was given no way to contact anyone at the office during the night shift, I only had numbers for their main office which was given during E-mails long before I started (none of these worked as nobody was in the office at night..) so...

 

I had to make an emergency dentist appointment but I had to wait till morning, I also rang the Reed office right after and explained the situation, I was told someone would get back to me with the consequences for missing a shift and all, after getting back from the dentists I was told by a family member to phone and ask for the person that had rang while I was out, when I rang back and explained what had happened, I was told not to bother coming back in because the training period had a 100% attendance requirement (which I wasn't told of) despite hearing a story from the overseer on the first night about people that were strong in one task and weak in others being allowed to just work on the task/s they were strong at so I'm not sure why 1 training day was so crucial as I wasn't doing bad so far and as I missed part of the training an exception could be made?

 

Being so close to christmas, this job was important even though it was temporary it was sort of a lifeline, and now I'm having to sign back onto JSA and I'm not sure if they will pay me anything without a fuss after losing a job over something so trivial after such a short amount of time.

 

I feel like I'm in a position to complain but I'm really just looking for options right now, thanks for any advice you can offer :|

Edited by Sidewinder
Edited out identifying information

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Hi there and sorry to hear of your predicament!

 

To be brutally honest, I think you will be fighting a losing battle here. You have no right to proceed with a case for Unfair Dismissal, and beyond a complaint that you were unable to contact anybody to explain the situation there is nothing you can do. You simply hadn't been there long enough.

 

Make sure that you get paid for the day that you were there though - they have to pay you for that, and explain everything to the JC when you reapply - hopefully in the light of what happened they will be understanding.


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yeh.. figured i wouldn't have much of a case if any case at all, felt a bit iffy posting here to begin with since this site seems to give advice for some pretty major claims, far above anything i've had to deal with before, thanks for the response anyway, i still think it was unfair though, as i was given no information that the training had a 100% attendance requirement (only that royal mail had a 2 strike policy not 1) until that last phone call from the boss herself, if i knew that i would have tolerated the pain and just got on with it even though the broken tooth required immediate treatment (pain and being unable to eat/drink)

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I think that you have been treated completely unfairly - and in breach of contract.

 

I think that you have a basis for claiming at least the value of the notice period which you should have been given. That may only be 7 days - but check it out.

I would waste no time.

Assemble any medical evidence you have - then write to the company and tell them how much you want and that you want it within 7 days or you will sue. Then sue. Don't make the threat unless you intend to carry it out.

 

If you do sue, I would claim for the notice period - plus something for the lost opportunity. You were on a training contract and so you had invested yourself in some chance of future gain.

I don't know what kind of job you were training for but I would suggest a claim for your notice period plus, damages for lost opportunity not exceeding, say, £300.

 

You have a very high chance of winning. IN fact your chances of winning the notice period will be over 95%.

I think that any company which treats employees - especially those without employment rights like this are bullies and they deserve everything they get.

Don't sign any confidentiality agreements - and when you win, come here and post up who they are so that they can enjoy their shame.

Let us know if you want a hand drafting documents.

 

Don't worry about the size of the claim. It is the size of the bully which interests us.,


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before following bankfodder's advice - you say Reed, and temp contract.

 

were you employed by an agency?


Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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What is an MDEC anyway?

 

Is it this - http://www.urbandictionary.com/define.php?term=MDEC ?


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I think that you have been treated completely unfairly - and in breach of contract.

 

I think that you have a basis for claiming at least the value of the notice period which you should have been given. That may only be 7 days - but check it out.

I would waste no time.

Assemble any medical evidence you have - then write to the company and tell them how much you want and that you want it within 7 days or you will sue. Then sue. Don't make the threat unless you intend to carry it out.

 

If you do sue, I would claim for the notice period - plus something for the lost opportunity. You were on a training contract and so you had invested yourself in some chance of future gain.

I don't know what kind of job you were training for but I would suggest a claim for your notice period plus, damages for lost opportunity not exceeding, say, £300.

 

You have a very high chance of winning. IN fact your chances of winning the notice period will be over 95%.

I think that any company which treats employees - especially those without employment rights like this are bullies and they deserve everything they get.

Don't sign any confidentiality agreements - and when you win, come here and post up who they are so that they can enjoy their shame.

Let us know if you want a hand drafting documents.

 

Don't worry about the size of the claim. It is the size of the bully which interests us.,

 

Whoa, hold on there!

 

You can't claim loss of chance here, so I'd lose that idea straight away.

 

There's nothing in the OP that indicates a breach of contract claim either. If we are working on statutory notice periods - that is zero!! So no claim there either.

 

The only way there would be a claim is if there is contractual notice due. A contract would need to be signed for that. If the assignment was temporary, in my experience with recruitment, it will be on statutory notice in any event. If its permanent and there's a contractual provision for notice (which again, in my experience only kicks in after the training or probationary period is complete) then there could be a wrongful dismissal claim.

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I have no doubt that there is a contract. To say that there is an absence of a contract because there is an absence of writing is not correct. No writing or signatures are necessary to create binding legal obligations in these circumstances.

 

 

Secondly because there is a contract there will be an implied term as to method of terminating the contract. Just because no statutory notice period has been accrued, does not mean that there are no common law rights. The rules on statutory notice have not abolished existing common law rights in this regards - unless you can link me to a rule which says that common law rights in respect of termination of employment are abolished.

Even if this is a training contract - is is a contract and therefore it will be possible to imply terms as to contractual termination.

It will be a very simple matter to argue that there is at least a 7 day notice period. If it was a fixed term contract, you might even be able to argue for the entire term.

 

I have no idea why you say that you can claim loss of chance here - you can certainly claim it - and although it may not eventually succeed, it is a small claim and there is nothing to lose.

The circumstances of this case are so manifestly unreasonable that I can imagine that any County Court judge would be incensed and would do what s/he could to produce a result which was fair to the claimant and which demonstrated the court's displeasure at the way that a more powerful defendant had sought to deprive their employee of the most basic consideration.

 

Furthermore, I can imagine that the company would rather not incur the cost and hassle of defending this claim for such a small amount - and would prefer to avoid the risk of the public shaming which might be the result of a successful claim against it.

 

The Consumer Action Group tries to encourage people not to remain supine in the face of this kind of treatment - and that may means that one has to be creative about the application of available law. This means - thinking outside the box.

If you are now on benefits, Kris.S will be able to apply for a waiver of all court fees.

.

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The Consumer Action Group tries to encourage people not to remain supine in the face of this kind of treatment - and that may means that one has to be creative about the application of available law. This means - thinking outside the box.

If you are now on benefits, Kris.S will be able to apply for a waiver of all court fees.

.

 

However this is not a consumer issue, it is an employer/employee issue with wodges of actual case law to draw on.

 

I asked if it was an agency contract because that'll have approx no notice period in the contract as standard. Maybe a day, but it'd be unusual.

 

Sometimes it is not in the best interest of an individual to encourage them to get bogged down in fruitless and frustrating cases when you know they have zero chance of success. So let's find out what the employer/ employee relationship is first, shall we?


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A number of companies require 100% attendance for training, especially if they are temp jobs.


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I'm sorry but you are wrong. It may be employment issue - but employment rights to not remove basic common law contract rights. Employment law exists to embellish common law contractual rights and to try and rebalance unequal bargaining partners - in the same way that much consumer legislation does.

 

If the circumstances are such as we have here - where there seem to be no employment rights then once has to fall back on the common law of contract.

 

If there is a written contract in which the notice period is agreed at one day then this may have a bearing - but not necessarily so.

 

I don't think at all that a claim in these circumstances is fruitless and I think that there is a very good chance of success - either by way of a judgment or by way of a settlement. I don't know why you seem to say that I have suggested otherwise

But certainly I want to know more about the notice period.


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You know what?

 

I think I am done debating in circumstances where logic, case law and common sense are thrown to the wind.

 

OP, I wish you the very best of luck. Do what is right for you, after seeking advice from someone you personally trust.


Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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I think BankFodder has a point. Being a temp worker doesn't mean you have no human rights. It might be a lost cause in practice but it's good to lay out the principles.


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You know what?

 

I think I am done debating in circumstances where logic, case law and common sense are thrown to the wind.

 

OP, I wish you the very best of luck. Do what is right for you, after seeking advice from someone you personally trust.

 

I'm sorry that you feel this way, I really am.

However, common sense and case law are precisely the basis upon which the common law was developed. Employment rights are based upon the common law principles of contract. There is nowhere in employment legislation which abolishes the common law of contract. The legislation relating to employment rights presumes the existence of a contract (of service) at common law. Once the contract exists, then employment legislation steps in to say that there will be at least these xxx and yyy minimum safeguards and that once you have qualified for those statutory rights - normally 2 years (but not always), then those xxx and yyy rights will be implied into the contract - regardless of the will of the employer (the stronger party).

 

Where the basic qualification for those implied terms has not been met, those terms fall away - but they don't fall away to nothing. They then expose the basic common law contract of service and one must then use the normal contractual principles and techniques to discover what the contract is really comprised of and to see whether it can provide any remedy for the wronged party.

 

And here is something even more controversial - I even think that it might be worth exploring the application of UTCCR to this contract. It might even be that a term of a contract which provides only for a single day termination - and also which refuses to take into account an emergency medical condition, is unfair and therefore unenforceable.


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Being a temp worker doesn't mean you have no human rights.

 

Which part of the Human Rights Act has been breached here, please?


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However, common sense and case law are precisely the basis upon which the common law was developed.

 

I'll ber over here sucking eggs if you want me.

 

None of this helps the OP unless they want to take up a very flakey case based on a tenuous premise and have a very very slim chance of not being laughed out of court for a few hundred quid. And we can't assess that chance unless they come back and describe the kind of contract they have.


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Which part of the Human Rights Act has been breached here, please?

I don't expect that this comment was expected to be taken in its literal sense. I don't expect that this poster we referring to the HRA.

I expect that the sentiment was that even a temporary worker has the right to expect at least the level of reasonable humanity which is one of the great hallmarks of English Common Law.

I think that he is right.


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I'll ber over here sucking eggs if you want me.

 

None of this helps the OP unless they want to take up a very flakey case based on a tenuous premise and have a very very slim chance of not being laughed out of court for a few hundred quid. And we can't assess that chance unless they come back and describe the kind of contract they have.

 

 

The purpose of this forum is not only to help the individuals who specifically ask for help. It also exists to inform and encourage the million or so unique visitors who come here each month.


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Ok. you want an academic debating club. I want to help individuals. I'm in the wrong place, I get it.

 

Million minus 1. Gratz.


Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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The OP was a temporary agency worker for a company. The company notified the agency that the OP was no longer required. Unfortunately OP does not have a leg to stand on as contract was probably between employer and Reed and not between OP and company. I would surmise that Emmzzi is offering the best advice.

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Bank Fodder, I'm sure you mean well, but you're giving poor and incorrect advice to the OP.

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Just to be a little clearer on my previous posts - loss of chance is a common law principle whereby if a Court is unable to reach a sufficiently clear view on what would have happened "but for" a breach of contract, it can award damages. Arguably, there hasn't been a breach here at all, but even if there was, I'm not sure how any loss can be argued for lack of training alone - that would only count for training with the employer and would not extend to training in alternative employment, so I don't see any loss there which can be quantified. If you look into the case law on this point, such claims are rarely, if ever, successful - and usually they are only successful in professional negligence claims, for example if due to poor representation, a Claimant lost a case and sued the solicitor acting for professional negligence. It's rarey, if ever, found in employment law cases.

 

You also seem to be confusing common law contractual principles with the statutory rights of employees - the two are far different. Take for example the employment contract - there doesn't have to be offer, acceptance, consideration and intention to create legal relations as there would be with traditional contractual relationships - the contract is automatically formed at the start of the employment relationship, whether written or otherwise. The fact that statutory rights are enshrined are key here. The statutory right here, which applies to agency workers and not just employees, is to a minimum period of notice upon termination of employment. This is stipulated in S86 Employment Rights Act 1996 - which, as previously indicated, is zero in this case because there is less than one month's employment. If there is a contractual provision to a higher notice period, this takes precedent and is then in the realm of wrongful dismissal damages based on breach of contract. You can't realistically seek to imply a greater notice period after merely a few days in employment when it is already dictated by statute and there are no extenuating circumstances. It's entirely misconceived to indicate otherwise.

 

The other point of note is that loss of chance is claimed under tortious, not contractual, principles.

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Thanks for all of that. I disagree with most of what you are saying in terms of the pragmatic application of what you are saying to the case in hand.

Of course, in terms of the principle of what you are saying, you are broadly correct - but I have found that one can get further not by going by the book - but by trying to push the envelope (does that work?!). The entire development of the common law has depended upon pushing the envelope and adapting to circumstances.

 

I disagree with you that there are no quantifiable losses. I expect that there were. Did the OP form a reasonable expectation that he would remain in employment for the rest of the week? Did he abandon some other opportunity in order to start this training? Might this unfortunate event - caused merely by serious ill-health - result in some black mark on his record? I expect that I could go on. We would have to have more detail from the OP as to his circumstances.

 

I'm afraid that you are completely wrong about the nature of an employment contract and to say that it doesn't need all of the essential elements of a contract. Of course it does. An employment contract is the same as any other contract but with a different set of implied terms because of its circumstances.

Once again, I am not aware that there is any legislation which runs counter to this idea. If there is - then please cite it and link to it from here.

I'm not aware that statute provides that there is no notice period in certain employment circumstances. If there is, then please tell us what it is.

The statutory provisions merely say that in certain circumstances, the minimum notice periods shall be x,y and z.

 

Where the employment falls outside the provisions of the legislation, one then has to see what one can do without the protection of statute and to see if there is some argument which might provide an alternative solution. I think that there could be here.

At the end of day, what I gather is really being said is that - "it has never been tried before."

That's probably true - but it doesn't prevent one from trying.

Had I been advising an OP who clearly had some assets - and about a large sum of money, I would be considerably more cautious.

As it is, it seems that the OP is in difficulty - now unemployed, - left short just before Christmas, probably will get his court fees paid. He has nothing to lose and something to gain - so my approach is "why not?" How interesting if it succeeded and if it went to works, at least we had a go.

 

I'll back him up. It seems I'm on my own.

 

Let's see if he shows up again.


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Reed are the OP's employer and no one else so the issue would be between Reed and the OP.

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What a good idea lets put in a claim and tie up the courts time with a case that is almost certain to lose, what a waste of time, yes ask for the 1 days pay but dont make a big deal out of this. If the OP is working through an agency then it would be better to keep them on side and look for another temp job, shops and bars are also short staffed this time of year so there is more work around just dont waste time on this claim.


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