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Hello - I'm hoping you will be able to shed some light on a colleague's awful predicament.

 

Today, our Head of Ops came over and asked my colleague to have a word in a meeting room. She was ushered into the room to be met by some head guy and a HR representative. Whilst she was in there, the Head of Ops and second in command took my colleague's Manager into another room to tell him what was going on.

 

Basically, my colleague was told that she was being dismissed due to her performance. The last time performance was mentioned was in January this year when she was told she wouldn't be receiving the annual bonus because she had only achieved a 4 (it should've been a 3). Since January she has not had any performance plans, no warnings (verbal or written) and was totally unaware of any sub-performance on her part. Clearly her manager was in the same position as he didn't know either.

 

For just over two weeks now, she has also been training a new member of the team - not sure why this would be if she was so bad at her job?

 

She has been employed by our company since May 2013 and I am worried that she may not have a leg to stand on due to being employed less than two years? Incidentally, whilst sacking her the HR person told her that she needed to consult a solicitor and the company would provide up to £500 to pay for this. What's that about? She definitely has been sacked as she has her letter of termination.

 

I would be so grateful if any of you could advise her further. She's a lovely lady who doesn't deserve this.

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It sounds as though your employer is providing her with a settlement agreement. Once signed by both parties, she is waiving her right to bring a claim against the company, and to make the document effective she has to have independent legal advice on it (which the company will make a contribution towards - that is the £500).

 

Unless she has a discrimination, whistleblowing, health and safety or breach of statutory rights claim, she has no unfair dismissal rights. The company must suspect they have a degree of legal liability, however, otherwise there would be no need to ask her to waive her legal right to claim against them!

 

She needs to ensure that the solicitor she sees provides advice to her on any potential claims and their value. And as an aside, there will most likely be confidentiality provisions in the agreement - so she may have already broken those by speaking to you! So I would keep it under your hat.

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The company havent followed the procedures for dismissal laid down in law and thus it is unlawful dismissal. This is something that can be taken to an ET even if there isnt 2 year qualifying employment but the payout for not following the rules is a fortnights salary compensation. She need to look at her employment ontract and see what the usual notice period is as if she is paid monthly I bet it is a month so that will be the minimum payoff she should receive.

The things they have done wrong are no notice of disciplinary meeting, no previous warnings, no represenataion, no indicationwhether poor performance is gross misconduct or another summary matter. In short, they are very wrong so it will be worth telling employer that an appeal against dismissal is going to be made as per the ACAS guidelines. Better still, speak to acas fisrt, expalin what has happened and then get the wording in to employer exactly as they say.

I wonder whetehr reinstatement is a real liklihood though so i would be looking at a settlement of equivalent to 1 months pay in lieu of notice plus any residual holiday entitlement (let us say a minimum of 5 weeks pay in total)and this will be tax free as it is severance and not salary. That is damned cheap for the company compared to goung to law and they would be aware of this if they employ a HR bod (what were they thinking?)

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The company havent followed the procedures for dismissal laid down in law and thus it is unlawful dismissal. This is something that can be taken to an ET even if there isnt 2 year qualifying employment but the payout for not following the rules is a fortnights salary compensation. She need to look at her employment ontract and see what the usual notice period is as if she is paid monthly I bet it is a month so that will be the minimum payoff she should receive.

The things they have done wrong are no notice of disciplinary meeting, no previous warnings, no represenataion, no indicationwhether poor performance is gross misconduct or another summary matter. In short, they are very wrong so it will be worth telling employer that an appeal against dismissal is going to be made as per the ACAS guidelines. Better still, speak to acas fisrt, expalin what has happened and then get the wording in to employer exactly as they say.

I wonder whetehr reinstatement is a real liklihood though so i would be looking at a settlement of equivalent to 1 months pay in lieu of notice plus any residual holiday entitlement (let us say a minimum of 5 weeks pay in total)and this will be tax free as it is severance and not salary. That is damned cheap for the company compared to goung to law and they would be aware of this if they employ a HR bod (what were they thinking?)

 

 

I'm afraid I have to disagree with you there.

 

 

It is not an unlawful dismissal per se. It may be a wrongful dismissal, but assuming that notice pay is paid up in full, there will be no claim. A standard Unfair Dismissal claim cannot be brought within the first two years of service.

 

 

I am unaware of any provision for a fortnight's compensation for a breach of procedure; a 25% uplift is available for a failure to follow the ACAS Code of Practice, but only on the back of a successful substantive claim for Unfair Dismissal. Up to two weeks' gross pay can be awarded if an employee reasonably requests to be accompanied to a disciplinary hearing (if they request the right and it is not granted), but ET's now are taking the view to award only nominal compensation of £1, rather than the full two weeks' gross pay. In any event, it sounds like the conversation was a protected conversation, rather than a traditional disciplinary hearing, to which there is no right of accompaniment.

 

 

It may be "wrong" - but unless there are other circumstances, it isn't unlawful.

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There's certainly no basis for an unfair/unlawful dismissal claim - although I'm not sure why the employer would be looking at a compromise agreement with under 2 years service..............

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My advice is based on my opinion and experience only. It is not to be taken as legal advice - if you are unsure you should seek professional help.

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Some employers just make it standard to do all dismissals on a settlement agreement. It may not mean anything.

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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Some really helpful answers - thank you so much. My friend has an appointment with a solicitor on Monday morning - the company has already been in contact with her today asking her for the name of the solicitor she's contacted. There is obviously some sort of time limit. She said that in the letter there is mention of £800+ severance pay but no other compensation. I would presume this amount would just cover lost wages for a couple of weeks?

 

Once again, thank you.

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