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

[BankFodder]

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.,

[BankFodder]

What is an MDEC anyway?

 

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

[BankFodder]

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.

.

[BankFodder]

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.

[BankFodder]

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.

[BankFodder]

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.

[BankFodder]

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.

[BankFodder]

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.

[BankFodder]

Apart from the comment about wasting the court's time - your advice is a very sensible pragmatic view. Of course it is for the OP to weigh up his priorities and to decide how he wants to proceed. That is always true in any situation.

[BankFodder]

The county court has the jurisdiction to rule on this issue. There would scarcely be any issue of costs on a simple contract claim like this.

I'm sorry but I don't know enough about discrimination law to answer you.

You are probably right.