What constitutes a months continuous employment?

[elpulpo]

I recently worked for a company, from Monday 2nd Feb until Monday 2nd March. I worked 4 full weeks, Monday to Saturday, until I was dismissed on March 2nd, the beginning of my 5th week of employment.

I am now trying to claim a weeks pay in lieu of the notice I should have recieved.

My former employer is claiming that I did not complete one months service.

I haven't challenged their logic yet. What argument might they have?

 

Any comments greatfully recieved. Thanks.

[godpikachu]

the logic is simple, your employer doesnt know how to use a calendar.

 

a full month for february 2009 would be 28 days, you started feb 2nd, your employment was terminated march 2nd, thats 4 weeks, 2 days, or 30 days (inc days off, if any).

[elpulpo]

well that's what I think. I've given them unntil tomorrow to pay up. I've got other issues too, written statement of particulars, grievance procedure, payslips, accrued holiday pay- all of which they claim I'm not entitled too- surely that's b*****ks though? Only thing they've provided is a reason for my dismissal, which I understand I'm not actually entitled too!

Thanks for your comment

[godpikachu]

well, after only a months work you probably wont have accrued any holidays anyway, but obviously you are entitled to PILON if your contract states a minimum notice period, as well as any outstanding wages.

 

Your employer can sck you at any time without reason during you first 12 months of employment, so it is odd that you have recieved written notice of the reason why, although its odd that you didnt have any kind of disciplinary or something, especially if your job still exists.

 

What reason have they given for sacking you may i ask?.

[elpulpo]

surely, godpikachu, I am entitled by statute to 4 weeks paid holiday a year? On the basis that I worked 6 days a week during the course of my employment that would be 24 days a year, one month's service= 2 days accrued? Not a fortune I know, but probably about £100-a lot of money now that I'm on the dole!

The Employment Rights Act 1996 states that anyone completing 1 months service is entitled to a weeks notice, although of course they can try & claim grounds for summary dismissal

[elpulpo]

have to post in stages, internet on the blink & I keep losing my posts!

With regard to the reasons for my dismissal-

The job was working in the kitchen of a pub, I'm a chef.

The kitchen was in a real state when I arrived, from a food hygiene point of view-real 'Ramsay's Kitchen nightmares' stuff! I had to dispose of quite a lot of food as it simply wasn't fit for consumption.

They also had about 20 pheasants hanging in the beer cellar, obviously been there a long time ( they stank) so I had to dispose of them.

The owners went on holiday to Australia for just over 3 weeks, a few days after I started, I was dismissed on the day they returned.

The reasons stated for my dismissal were that I had wrecklessly wasted food by disposing of so much of their existing stock.

They also stated that I clearly had 'communication problems' with my work colleagues.

 

Surely what they called 'wreckless wastage' was merely complying with food hygiene regulations?

With regard to their accusation of 'communication problems' I have requested that they elaborate, I did tell them from the outset that I suffer from slightly impaired hearing, and that I struggle if people don't speak clearly, especially in a loud kitchen environment. Possible DDA claim?

 

I apreiciate that normally people don't have any employment rights within 1 years service, is there nothing with regard to what I was doing was essentially merely compling with the law ?

[godpikachu]

surely, godpikachu, I am entitled by statute to 4 weeks paid holiday a year? On the basis that I worked 6 days a week during the course of my employment that would be 24 days a year, one month's service= 2 days accrued? Not a fortune I know, but probably about £100-a lot of money now that I'm on the dole!

 

yes, the minimum amount of holiday (based on a 5 day full time week) is 28 days, however this, unless provision is made for in your contract, your holiday alowance must be accrued, there is no automatic entitlement to 28 days holiday straight away!.

THIS tool will allow you to work out how much you were entitled to.

 

The Employment Rights Act 1996 states that anyone completing 1 months service is entitled to a weeks notice, although of course they can try & claim grounds for summary dismissal

 

well, that sounds like what they have done (more on that later), and yes you would otherwise be entitled to at least 1 weeks notice.

 

 

have to post in stages, internet on the blink & I keep losing my posts!

With regard to the reasons for my dismissal-

The job was working in the kitchen of a pub, I'm a chef.

The kitchen was in a real state when I arrived, from a food hygiene point of view-real 'Ramsay's Kitchen nightmares' stuff! I had to dispose of quite a lot of food as it simply wasn't fit for consumption.

They also had about 20 pheasants hanging in the beer cellar, obviously been there a long time ( they stank) so I had to dispose of them.

The owners went on holiday to Australia for just over 3 weeks, a few days after I started, I was dismissed on the day they returned.

The reasons stated for my dismissal were that I had wrecklessly wasted food by disposing of so much of their existing stock.

They also stated that I clearly had 'communication problems' with my work colleagues.

 

Surely what they called 'wreckless wastage' was merely complying with food hygiene regulations?

With regard to their accusation of 'communication problems' I have requested that they elaborate, I did tell them from the outset that I suffer from slightly impaired hearing, and that I struggle if people don't speak clearly, especially in a loud kitchen environment. Possible DDA claim?

 

I apreiciate that normally people don't have any employment rights within 1 years service, is there nothing with regard to what I was doing was essentially merely compling with the law ?

 

With regards to a DDA claim, are you registered disabled at all? and do you have medical evidence of your deafness?.

Obviously deafness, however slight, is a recognised disability, and you made them aware of this prior to your employment commencing, however as their reason for dismissing you was primarily that you threw out food not fit for human consumption, it might be difficult to prove a DDA claim without them clarifying in writing as to what they mean by "communication problems", for all you know, they may have had complaints from staff about you being abusive (a la gordon ramsey), so clarification there is required.

 

As for the rotten food, obviously this food was not your property so you should have consulted them before disposing of it, however like you say you had reasonable cause to believe that said food was not fit for human consumption, but still you could have brought this to their attention, ok, so they were away on holiday, but there was nothing to stop you boxing it up and putting it in the freezer marking the box "do not use".

If there was any doubt, a quick phone call to HSE would have solved the problem there.

 

 

If you have not done so already, raise a written grievance asking for clarification on the two issues, and state that you expect to recieve your PILON as you completed 30 days employment with them.

 

Other than a DDA claim, which seems rather weak at the moment, there is no recourse for you, as you have not had 12 months service. This is a pretty rough deal i know but thats the way it is unfortuneatley, if they refuse to pay you, then you would have to consider a small claim through the court to get any money they owe you.

[elche]

El pulpo

 

It is not 28 days till April 2009 - tienes razon (you're right) that the stat minimum is 24 days (5 day worker), and that you should have accrued 2 days holiday in 1 complete month of employment.

 

The right to holiday does accrue from your 1st day of employment, but in the first yea of employment, an employer can refuse to give holiday until the employee has actually accrued it

 

Che

[elpulpo]

thanks for your input, Che.

With regard to the manky food issue, I did raise this matters with the pub manager and with the publican's sister, who worked there as a bookkeeper. Both merely stated that it had never been seen as an issue before. Surely it is incontravertable, if foodstuffs have reached their use-by date, that they be disposed of? I even offered the food to these 2 people, if they wished to take it for their own consumption.

 

I am contemplating raising the issue with my local authority's Environmental Health Dept, in an attempt to substantiate that my concerns were valid.

Do you not think that it might act as a useful 'lever' in this matter that there were issues of poor food hygiene in the circumstance of my dismissal? I can't imagine they would want it to become common knowledge. I was just doing the right thing.

 

For example, several years ago, I read of a case of a chef who was using pieces of raw meat in the kitchen store room as some sort of aid to masturbation(?!?). He was caught red-handed (pardon the pun), and quite rightly dismissed for gross misconduct.

In response to this, the chef made an application to employment tribunal, claiming unfair dismissal. Now you'd have thought such an application could be easily defended by an employer, but the employer in question promptly setttled. Why? Well obviously, you don't want to be the restaurant synonymous with the story of the chef who w**ks on the steaks!

I feel I've been very unfairly treated. I'm certainly not looking to blackmail them, but it should be established that I did nothing wrong.

[godpikachu]

well, if you want to contact environmental health or HSE that is up to you, obviously in your opinion (and in fact in law), food which has passed its use by date should be disposed of, especially so with meat as it is not always completley clear wether it is fit for consumption or not simply by looking at it, so you have to go by the use by dates on the package.

One more point about the meat, you said there were pheasants hung in the cellar, for one, i would not say that this is a safe place to store meat to start with, as beer cellars usually attract vermin and insects, so not a good place for curing meat.

Do you know how long the birds had been there for prior to your arrival?, standard practice when processing game meat would dictate that the birds be gutted, defeathered and left to hang in a warm, dry place for a couple of days, a process which in itself can cause contamination of the meat but is still allowed if carried out responsibly and safely.

 

 

 

One thing i will ask is do they have a valid food hygene certificate for the premises?, and do you have one personally?, as obviously to work with food intended to be sold to customers both you and the premises should have one.

[elpulpo]

I'd say the pheasants had been there for a couple of weeks, I wouldn't have wanted to handle them. Unplucked, undrawn game shouldn't be anywhere near a beer cellar, or indeed a kitchen; it should come from a game dealer, ready-prepped.

Somehow, last June, they gained a 5 out of 5 (excellent) rating at their last EHO inspection, under a previous chef.

I hold an intermediate level food hygiene certificate

[godpikachu]

I'd say the pheasants had been there for a couple of weeks, I wouldn't have wanted to handle them. Unplucked, undrawn game shouldn't be anywhere near a beer cellar, or indeed a kitchen; it should come from a game dealer, ready-prepped.

 

yeah, it would not be fit for consumption then, as if it had been left un processed in an unsuitable place, more than likely the meat would have attracted flies and would have been in an advanced state of putrification.

Meat that far gone isnt even suitable to be fed to the customers dogs, let alone the customers themselves.

 

 

Somehow, last June, they gained a 5 out of 5 (excellent) rating at their last EHO inspection, under a previous chef.

 

....and ill wager that last june they didnt have rotting pheasant carcasses hanging in the beer cellar and had spent the previous few weeks keeping the kitchen in to condition.

 

I hold an intermediate level food hygiene certificate

 

good, so you ave a fair idea what you are talking about then.