Sacked on the spot without warning

[RachelMD]

Aye. That's important here

[RachelMD]

What was your job? Title? Responsibilities?

[RachelMD]

Yes, that's the contentious issue. Rather fishy that you got the Andy Black at this point.

Of course, the ER will try to argue that the EE wasn't entitled to a months notice, that's why I asked what your position was.

If you were relatively senior, and it would be implied that a months notice would be reasonable, then I think you'd have a good argument for being eligable for SER.

[RachelMD]

Statutory Employment Rights.

Gives you far greater scope to make an application to ET (Employment Tribunal)

[RachelMD]

Certainly you need to go see an employment law solicitor, maybe a few as opinions vary.

 

The qualification for SER issue is the big bowel of contention here.

 

Your employer had a statutory obligation to provide you, within 2 months of the commencement of your employment, with a written statement of the particulars of employment. That document should include the periods of notice that each party is required to give the other. Evidently that document wasn't provided.

Now, if you're in position of some seniority, where it might be implied that it was reasonabe for each party to give the other 4 weeks notice, you might be able to argue that your employer should have given you such notice in this circumstance. In which case you'd have, when taking into account the 4 weeks notice, over 1 years continuous service. Bingo, Statutory Employment Rights!

 

As Sidewinder said, the danger is that if you take this to a solicitor, they'll take a look at your length of service and say, 'sorry, no can do'.

I can't claim with any certainty that a claim would be accepted by ET on the 'implied notice' argument, but it's worth a punt. If you do go to see a solicitor, you need to impress this argument upon them.

[RachelMD]

Speak to a solicitor first.

Don't write asking for a contract, they might well send you one that includes all the terms that scupper your argument- 'only entitled to 1 weeks notice', etc.

You're in a stronger position with no written contract.

Plus, as they've not provided you with a written statement of particulars of employment, if you were to make an application to ET you could claim an additional 2/4 weeks pay for this failure.

[RachelMD]

Absolutely, but the OP HAS been dismissed with pay in lieu of notice, and with no due disciplinary process. The employer would seem to be aware that in doing this, they are relatively free of a risk of Tribunal action for Unfair dismissal as they have stopped the clock at 11 months. Letter of dismissal on performance grounds, P45 and termination pay already issued. neat, tidy and all within the 12 month limit - unless the OP was entitled to a months notice (contractual), not a week (statutory).[/quote

 

 

Bare in mind SW, that pay in lieu of notice can only be given if there is contractual provision for it.

I think this is one that is 'worth trying' for a SER qualification.

The ER failed to provide a WSoPoE, so the EE has at least an argument that it was implied (and therefore in the circumstance a contractual provision) that there should have been 4 weeks notice given. Worth a punt, nothing to lose.

[RachelMD]

No - pay in lieu can be made with or without a contractual provision, the point being that without a contractual term it represents 'damages' for the employee not being permitted to work that notice, providing that the amount paid represents the full amount that the employee would have earned had the notice been fulfilled.

 

I agree that this needs to be pushed as the OP has been treated with utter contempt and I bet it isn't the first time that the ER has done this!

 

If only the ER could be made to accept that there should have been a month's notice - interesting that the OP seems to think this was the case.

No. there must be specific contractual provision that the ER can pay PILON.

And there seemingly wasn't such provision here, so unless the ER can show grounds for GM, they should have given notice.

 

Can I just check, from #1 Gaz, you said-

"was for my replacement is there anything i can do about constructive dismissal???

All they gave me in the office was a letter saying i was being terminated there and then, my pay slip for this month and next month, my p45 and a cheque which is one months money, commission for what i have sold, less tax."

 

Did you get a cheque which is one months money plus commission?

 

If so, that helps a lot.

[RachelMD]

I got paid yesterday as normal in the bank for may and the cheque is to cover June.

 

Can i just ask as they have paid me for June with the cheque, wouldn't that take me over 12 months as they have paid me for June???

 

I have two pay slips, one for May and another for June

 

Exactly.

They seem to have given you a payment in lieu of notice.

Now, to legally do that, they need to make contractual provision to do so. However, they haven't even provided you with a Written Statement of Particulars of Employment, which is a statutory requirement to be complied with within 2 months of the commencement of your employment.

 

By making such a payment to you, they are implying that the contractual agreement was that you were entitled to a months notice upon termination of employment. And they should have allowed you to continue working through that period.

Therefore, you should be in a strong position to successfully argue that the 'Effective Date of Termination' of your employment isn't until the end of June.

 

Et Voila! One years continuous employment and Statutory Employment Rights.

[RachelMD]

Gather together every single document, note, email, letter, written comment, payslip, etc that you have in relation to your employment... I read somewhere, I believe, that they did not produce a statement of employment particular within the prescribed time (2 months from start of employment), therefore, sit down and write down all your obligations to your ex-employer, including, but not exhaustively, working hours, responsibilities, car, benefits, etc... everything you may recollect which could be of use to a solicitor in order to have your case assessed...

Yeh Baby

[RachelMD]

Thanks ever so much...

 

In the absence of Terms and Conditions of employment, a tribunal would hold the view that you would be entitled to a week's notice... However, the content of your payslip for June shows a payment for the whole month (if compared to the payslip you hold for May - and includes accrued holidays), therefore implying that your notice runs to the end of June, thus if we calculate your effective date of termination (EDT), it would be on 30 June 2011, two days passed the necessary one year mark to claim statutory rights.

Aye

[RachelMD]

Would this payment be classed as a PILON payment??? or a payment for the breach of contract (damages)??? sorry for being thick this morning

 

Thanks Bigredbus

Did they say either way?

Given the absence of a WSoPoE, they're knackered basically.

There was no contractual provision for this situation, so whatever their argument, they should lose.

[RachelMD]

I say go for it.

As BRB says, you should, from everything you've told us so far, have a straightforward case at ET.

I doubt it would go so far as a hearing, far more likely that they would come to an agreement with you.

I'd advise going and speaking to a number of solicitors, if you can get a free initial consultation. Shop around, as solicitors can be very apathetic when it comes to ET claims.

Don't pay anyone for advice, and beware if a solicitor offers you representation on a 'no win, no fee' basis. At ET, costs are almost never awarded, so the solicitor would end up getting a good chunk of any award you received.

In fact, unless you really don't feel capable of handling an ET claim yourself, I'd advise against having a solicitor handle it. It's perfectly possible for a reasonably capable person to do it themselves. But if you can test the waters by getting an initial free consultation from them, they're worth speaking to.

 

What size is the business you were working for?

How easily do you think you can get another job?

[RachelMD]

Hello again Gaz. Fwiw, quite a few people on the forum have self-represented at ETs. I don't know if Rachel did, did you?

 

You will get help here, we like battles against nasty employers .

 

My best, HB

A few times, yes. Always got a settlement before it went to ET, thankfully.

[RachelMD]

The plot thickens

 

I have just had a phone call by one of the other sales guys and they have someone replacing me on Monday They interview him about ten days ago, i was there when they did.

 

Constructive dismissal???

Well, that doesn't seem unusual really. It's to be expected that they'd replace you.

What do you mean by constructive dismissal, Gaz?

CD is a situation where an EE resigns from their job, and claims that their ER effectively dismissed them by behaving towards the EE in a manner that left the EE with no other option than to resign.

[RachelMD]

Can you not think of any reason at all as to why your ER has dismissed you?

Are there any interpersonal issues, have you fallen out with anyone?

Sorry to have to ask, I don't want to come across as if I don't believe you.

Obviously there is some reason for their decision, it seems strange that this is so out of the blue.

[RachelMD]

Find out, discreetly if that guy is a family member or friend of the owner or anyone's relative there... And were you the junior employee there?... Were you the last in?

Good point. Nepotism is often the explanation for a reasonless or false dismissal. It's happened to me.

[RachelMD]

A Reference!?!?! Really!!?

Why? Why would they give you a reference? They've just dismissed you on the spot.

 

Right. Before you do anything else, certainly before you make any noises towards taking legal action against them, get a reference from the Sales Manager.

Or, get someone to contact him as a potential employer and ask for one.

 

If they give you a 'glowing', and I suspect they will, then they're stuffed.

[RachelMD]

So you're asking the SM for a reference?

[RachelMD]

Right

 

I now have two great references in hand from my sales and business manager.

The Letter that was handed to me was signed by the sales Manager.

 

Also over the last few days i have been doing a lot thinking and i have found out that this company that has come in to look at figures, they interviewed everyone in the sales department but they didn't bother with me I was the only one not to be interviewed or spoken to.

 

I have been doing a lot of reading over the last few days due to having time on my hands but i can't seem to find any help really regarding the ET1 form and how i should fill it out.

 

Also I have been looking a bits on the net and i am unsure regarding the PILON payment and when my employment will be class as terminated. Some say there and then but it will be breach of contract if the previsions are not there for a Pilon payment and some say it can be added to my employment which would make me over 12 months

 

http://www.payandbenefitsmagazine.co.uk/pab/article/legal-comment-pilons-sufficient-to-terminate-contracts-12318802 - this case has put doubt in my mind

I will copy and paste the article if i am not allowed to link or you don't want to click the link.

There was contractual provision for PILON in this case, there wasn't in yours.

There's the difference.

 

Hello everyone, BTW. Have ya missed me?

[RachelMD]

Thanks Rachel, we have all missed you did you have a good trip.

Fantastic. Ran over a badger and a red squirrel within 5 minutes of each other.

Then we went to a garlic farm. Doesn't get better than that.

[RachelMD]

Huh!... Squirrel pie???

 

Welcome back!

I was tempted, but it was a bit squashed. They're a lot smaller than the grey ones, really cute.

[RachelMD]

Employment Tribunal Gaz, if you're going for unfair dismissal, non-payment etc.

http://www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/employment/claims/using-forms.htm

[RachelMD]

Can't see why not. Just make sure you do have good copies.