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Hi all,

 

Hoping someone can help me here..

 

 

.unsure if I can claim against unfair or constructive dismissal due to the timeframe etc

and am seeking advice on what to do and where to go so here goes....

 

I dismissed from an employed back in August for what they have described as gross misconduct.

 

 

We worked in a sales environment and from their side they believe myself triggered a commission payment

to a junior member of staff deliberately.

 

I did not accept this claim and they dismissed myself but was however offered a lower ranking position

where the salary was 5K less and due to the commission I had from my role would total 15K less per year if accepted.

 

 

There was other incidents in the office where people had done the same and never been penalised

and feel this was mainly due to the fact I had 3 weeks off.

 

Senior members of staff including my line manager often let us change "files" into other members of staffs names

to ensure they hit target so to me this was quite the norm.

 

We worked in a heavily commissioned sales environment and quite often were tasked with doing junior members of staff roles,

telesales etc and this impacted heavily on our commission also.

 

In the May/June I was signed off sick by my doctor for stress and anxiety due to work and a marital split

and was continually told by my friends who I worked with/colleagues that if I did not return to work after being signed off

I would be demoted on my return.

 

I decided to return after sick leave and was then confronted with the fact my targets were now increased

(along with 2 other members of staff) over and above everybody else in the office

and having 3 weeks off I was never going to hit these targets and miss out on significant commission payments.

 

I was offered a lower salaried position but declined for financial reasons

and the fact I had time off sick and was now even more worried about my job and home etc

and felt due to this claim being brought against me I had no choice but to decline their offer of employment and to leave.

 

 

I worked for the company for 3 years but had 2 breaks from the employer,

once in year 1 after 6 months and after 20 months for various reasons including the company threatening to withold commission payments.

 

Any more Q's please feel free to ask - I know I may have missed the deadline to claim but this is now impacting me on future job applications

 

Any help would be greatly appreciated.

 

Thanks :-)

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The time for any potential claim ran out in November 2013.

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None that I'm aware of.

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It sounds from your post as though you don't have the two years continuous service required to bring a claim, and you're 2/3 months past limitation.

 

Best to let this one go, I think.

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Call ACAS helpline on 08457 47 47 47. Your options are limited, but you may have a disability discrimination angle. For such a case the Employment Tribunal may extend timeframe to claim up to 6 months. .. ie February 2014 ! You can always try and call upon your ex-employers better nature and explain that you may be making a disability claim under Equality Act 2010. They may then compromise with you and at least help you with a positive reference. . There may be options via breach of contract or disability discrimination in a county court which has a 6 year time limit (Breach of contract) ,or 6 months (i think) under Equality Act. Based on info you've given it's impossible to gauge whether a) you even have any heads of claim, and b) if in any event such a claim has any merit.

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On what grounds would it fall into a disability case? Is that because of being signed off as thats all there is disability wise I can see?

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On what grounds would it fall into a disability case? Is that because of being signed off as thats all there is disability wise I can see?

 

Superdry ... In past 3 years I have virtually lived and breathed the Equality Act, and know how to engineer a claim out of even the most basic heads. Based on info given there is a prospect of a claim. 1) Prima facie OP can be categorised as being disabled ... 2) he appears to have possibly been forced back to work and 3) no evidence or attempt to make reasonable adjustments ..and 4) was potentially then treated less favourably than a non disabled member of staff . Long shot, but he only wants a reference. Scare them and they may well compromise.

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Very true! Having been signed off by a doctor for 3 weeks then, returning under duress I suppose its worth a go! Its purely a decent reference I would like really!

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Aah forgot it was your post superdry. It's worth a shot. Be confident and speak to EHRC as per link above. I think you can get them to compromise. Be tenacious.

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The six months extension period simply isn't true. Please don't follow this advice.

 

A brief period if work related stress is not a disability. A disability in law is a substantial impairment which affects your day to day activities (not just work) and which lasts a year or more.

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Jurisdiction can go over the time, if there is a legitimate reason it couldn't be done in the 3 months.

 

Also I think the other criteria is " which may be expected to last more than 12 months"

 

Disability is quite a hurdle to establish and is the first thing a respondent will try to disprove.

 

In my experience you have to actually bring a claim before your employer would consider a deal.

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I agree with becky. I am not seeing any real claim here. You don't qualify for an unfair dismissal claim as you don't have 2 years continuous service, and you missed the very strict 3 month deadline for bringing a claim. You need an incredibly good reason why it was not possible to bring the claim in time to have any chance of getting an extension.

 

The only possible claim I can see is a claim for one week's notice pay, if the employee was not reasonably justified in dismissing without notice for gross misconduct. This kind of claim is not subject to the 3 month deadline if brought in county court. But to be honest if you changed the name on files to help a junior employee meet his targets I think that would be gross misconduct.


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With respect i think members may be missing the point of what the OP is truly seeking. A reference.

 

You are correct re ET claim prospects ... close to zero. ... and without an EX160A fee exemption it would be a waste of at least £250 filing fee.

 

Re Becky's comments- They seem to be unusually harsh and disproportionate. Re comment 1 - the six month extension is not false. I applied after 5 months as a disabled person, and got claim accepted. I also think Disability discrimination can still be lodged in time in civil courts. Again, a long shot, but a letter before action may lead to a compromise ....ie a reference.

 

Re comment 2 . Technically the OP may well not be disabled. BUT, that does not mean the OP may not be able to make an argument re disability ..possibly a compelling one. You do not need to have had a mental illness for 12 months to pass the test ... the test is either 12 months...or has potential to last 12 months or more. OP's condition could re-occur. I have dealt first hand with many mental health sufferers who have had condition for less than 12 months and yet been categorised as being disabled.

 

Anyhow, as I correctly stated to OP, try ESAS . Their guidance is accurate.

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Disability is something that would last 12 months and is expected to be permanent. There are certain diseases that are automatically considered permament even if you have only had them a short while such as MS. Permanency for work related stress is almost a non-starter. Repeated bouts of depression can be considered a permanent disability even if you arent having a problem at the moment.

However, your dismissal wasnt related to any disability and you didnt say that you told your employer that you considered yourself to be disabled by your mental health issues.

I dont think there is any mileage in a claim and a reference after dismissal for gross misconduct is not going to be helpful. A personal reference from on of your senoir colleagues may be a better bet

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badback2 - the rules for getting an extension for disability claims and getting an extension for unfair dismissal claims are different. It is much tougher to get an extension for unfair dismissal claims. The Tribunal won't examine this when deciding whether or not to accept the claim - it will be considered later down the road or employer can ask for the claim to be struck out.


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Again i think some members may be missing the emerging point of the thread.

 

I agree that the OP has no hope of an in time ET claim. I was merely passing on some of my own experiences to counter some member replies which appeared to infer that I was away with the fairies lol

 

As far as I am aware the OP is no longer seeking UD . He just wants a reference . End of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

 

Maybe a new thread and topic is required as this post may turn into a member's point scoring farce which may regrettably be unhelpful to the OP for whom we are meant to, if at all possible, support !

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Wouldn't it be easier to simply ask for a reference?

  • Haha 1

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Hi All,

Hoping someone can help really regarding the entitlement to holiday despite losing my job.

I worked from the start of the tax year and more, so 1st April and lost my job due to a sacking on 5th August last year.

Upon leaving my job I was not paid any holiday pay and I am now under the impression that I should be entitled to holiday from 1st April to 5th August. So if my calculations are right it would be 5.6 x hours worked per week which was 37.5 = 210 x the pro rata for the year which would be 4 months, which would be 210 hours per year (210 divided by 12 x 4 months worked).

Does anyone know if I should still be due my holiday despite being sacked from the job??

 

Thanks all

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What were you sacked for, sometimes some companies can withhold holiday pay depending on reason for being let go... Happened to me.

 

Dont worry, we wont probe any deeper into what happened, just a rough idea.


 

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Well its a long story, split with the ex and had 3 weeks off with stress and anxiety as im also ex forces. When I returned to work my targets were increased etc (sales job) and I was under duress. I was sacked for in their eyes what they call misconduct

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Have you asked the hr department of the firm?

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Not yet as wasnt sure if I was entitled to anything. From various sites on the net however it would seem so. The year before I also lost 20 days holiday due to not being able to take them, only 2 staff were allowed off at a time and we had 30 staff who were all entitled to 28 days leave!

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I thought you resigned? (declined offer of a demotion). Was that with or without notice?


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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