Dismissal with no prior warnings (Constructive / Unfair Dismissal ?)

[elpulpo]

Well if they have not used the words "Gross Misconduct" then I think you have got them!

 

They are obliged to give her eight weeks notice under her contract and this takes her well past the year. OK, they can opt to pay her in lieu of notice if they wish but that doesn't alter the timing for ET purposes.

 

The only way of them avoiding this would be to instantly dismiss for Gross Misconduct. If this was valid then they need not give any notice or pay in lieu but would still have to pay for any holiday due.

 

Given that they have not claimed it to be GM and have given some pay in lieu of notice then, basically, they have screwed up! I can't quickly see how they can wriggle out of that one.

 

None of this addresses the right and wrongs of her conduct and their response but does make it easier for you to take them to an ET if you wish.

 

I come back to this point later....

I don't agree, Uncertain.

If they pay PILON, then the 'Effective Date of Termination' is held to be the date they receive the PILON. The 'EDT' only extends to the end of the notice period if they're given 'garden leave' or they actually work the notice period.

There might be an argument here for extending the 'EDT', but it's not as clear-cut as you make out.

 

We need elche. Where is she?

[elpulpo]

BTW, could the owner subsequently claim that the (alleged racist) remark represents Gross Misconduct (even if that is never mentioned anywhere) ?

 

The reason I ask is because once we expose this error to her she almost certainly will look to backpedal. Is there a risk of that ?

No. She's held her Disciplinary Hearing. She can't have another one when she realises at the appeal that she's cocked up.

[mariefab]

On what date did her employment begin?

[mariefab]

For the appeal, it might be best to just stick to the penalty of dismissal being too harsh and raise the issue of the outstanding 7 weeks contractual notice period.

 

I wouldn't point out the procedural errors or the absence of any mention of gross misconduct.

[nickoxford]

Hmmmm, that given, does it mean that the owner does not have to give notice as outlined in the contract ?

 

I guess the other questions are ..

 

1) if she is not claiming gross misconduct is the dismissal "unquestionably" too severe ? (i.e. she should have followed the disciplinary process of warnings) or

 

2) if she considers the remark to be racist, is that enough to qualify as dismissable (if you like , equal to gross misconduct)?

 

I am trying to understand whether her action was commensurate with "normal behaviour" is such a case.

[nickoxford]

Marie, she was 2 weeks short of a full year !

[BeauBrummie]

 

 

Also her contract clearly states that the notice period is 8 weeks.

 

 

 

Hi nickoxford,

 

Can you confirm the actual wording of the notice period. I do not wish to spoil what is being suggested by others who are trying to help but the Statutory Minimum notice is 1 week from Employer to Employee for your daughters length of service.

 

For your daughters employer to give 8 weeks notice leaves that contract very generous - think about it!!

 

I would suggest that your daughter if she wanted to resign would need to give 8 weeks notice, I may be and I hope I am very wrong but before you go to far I would check.

 

Beau

[mariefab]

It's a real shame that she wasn't there for one more week.

[elpulpo]

Aye. That's a good point, BeauBrummie.

[nickoxford]

Beau,

 

the contract is very basic. The actual wording is....

 

NOTICE PERIOD

Eight weeks notice is required.

 

.... that's it

[nickoxford]

Marie, I agree but i suspect that it is no accident !

[BeauBrummie]

Beau,

 

the contract is very basic. The actual wording is....

 

NOTICE PERIOD

Eight weeks notice is required.

 

.... that's it

 

Therfore you are getting good advice I will stand aside - I hope it works out for your daughter.

 

Beau

[nickoxford]

Beau,

 

also note that the nursery where she worked is very small and up until recently my daughter was effectively running the place a Deputy manager. I would suggest that whet the owner really meant was that my daughter must give 8 weeks notice (to give her time to someone else in to replace her). My understanding of a contract of employment is that the terms are mutually applicable ??? am i wrong ?

[mariefab]

Hmm, what do other's think?

 

Employment Rights Act 1996 (c. 18)

[elpulpo]

Beau,

 

also note that the nursery where she worked is very small and up until recently my daughter was effectively running the place a Deputy manager. I would suggest that whet the owner really meant was that my daughter must give 8 weeks notice (to give her time to someone else in to replace her). My understanding of a contract of employment is that the terms are mutually applicable ??? am i wrong ?

Not neccessarily. Often the employee is required to give far more notice than the employer.

But in this case, if the employer hasn't been explicit, then the ambiguity should work in your daughters favour.

[BeauBrummie]

Beau,

 

also note that the nursery where she worked is very small and up until recently my daughter was effectively running the place a Deputy manager. I would suggest that whet the owner really meant was that my daughter must give 8 weeks notice (to give her time to someone else in to replace her). My understanding of a contract of employment is that the terms are mutually applicable ??? am i wrong ?

 

No you are not wrong but the Contracts that I issue actually say the length of time that either side must give and it does vary from Employee to Employer there is then no reason to doubt the time required.

 

That Contract sounds as though it has more holes in it than a sieve, so if you can, take them to an ET, but you must appeal first and the appeal should be not be heard by the same people who were present at the original hearing (I will add here if possible) because it is a small "Company"

 

Beau

[nickoxford]

thanks for clarifying elpupo. Whilst it's not clear-cut it seems that I have a good chance to show an extension to carry her employment into the bracket that will qualify her for an ET.

 

With this type of technicality, if she fails to uphold our appeal, where do i go ? Do i use this technicality to apply for an ET ?

[elpulpo]

Hmm, what do other's think?

 

Employment Rights Act 1996 (c. 18)

I googled 'effective date of termination' and from what I can see the EDT is the date that PILON is given. So whatever notice she was entitled to wouldn't take her over the 1 year qualifying period, unless she actually worked that period or was on 'garden leave'.

However, I'm not sure if she can argue that as the grounds for her dismissal were not severe enough to warrant summary dismissal, she should have worked the notice period, therefore she can request that an ET consider her claim. It's complicated. That's why we need Elche.

[nickoxford]

Interesting Beau.

 

We asked for the name of her "legal advisor" who was present at the disciplinary hearing but she wrote back refusing to tell us (saying that we have no right to have that information). I was not aware that the appeal must have different people. So the owner has to have a different rep as does my daughter ? She was planning on taking in the same employee who was there in the first hearing bt it sounds like that is no the case ?

[elpulpo]

There's no reason for the employee not to take the same rep.

[nickoxford]

OK. But the employer must have a different person present ?

[nickoxford]

I have to say I am overwhelmed by the positive, constructive and helpful advice you are all willing to offer.

 

Thanks everyone. I will continue with my appeal letter and watch here for anything further.

 

Cheers everyone !!

Edited February 8, 2010 by nickoxford
spelling :-(

[mariefab]

Is there any language in her contract about payment in lieu of notice.

[mariefab]

But the employer must have a different person present ?

 

Not necessarily, especially in a small business.

[nickoxford]

No language in her contract about PILON. As I said, I don't think I have seen a more basic contract than this one. it's two sides and a lot of spaces between paragraphs.