Employment law experts please - i been dismissed for no 'apparent' reason?

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wez130 said:
if they had followed correct procedure, it would have took me to over 12 months service.
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Those procedures MUST be stipulated in your contract somehow and you fit into certain criteria as listed below..... otherwise it wouldn't matter, 12 months service must have been completed (51weeks anyway) for you to have the right to a tribunal....it will be interesting to see what the tribunal says.

Employees have the right not to be unfairly dismissed. In most circumstances employees will need to qualify before they can make a complaint to an employment tribunal:

at least one year's continuous service for employees in employment before 6th April 2012

two years for employees starting employment on or after 6th April 2012
However, there is no length of service requirement in relation to 'automatically unfair grounds'.

Dismissals are classed as 'automatically unfair', regardless of the reasonableness, if an employee is exercising specific rights to do with:

pregnancy: including all reasons relating to maternity

family reasons: including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants

representation: including acting as an employee

representative and trade union membership grounds and union recognition
part-time and fixed-term employees

discrimination: including protection against discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation
pay and working hours: including the Working Time Regulations, annual leave and the National Minimum Wage
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http://www.acas.org.uk/index.aspx?articleid=1797

Now the above stipulations are legally enforcable, the ACAS guidelines you have listed regards capability et al are not, however they can be taken into consideration when deciding whether a person was dismissed unfairly or not...

Questions and answers

When is a dismissal fair?

Dismissal is normally fair if an employer can show that it is for one of the following reasons:

a reason related to an employee's conduct

a reason related to an employee's capability or qualifications for the job
because of a redundancy

because a statutory duty or restriction prohibited the employment being continued

some other substantial reason of a kind which justifies the dismissal

And that they acted reasonably in treating that reason as sufficient for dismissal.

Does an employer have to tell an employee the reason for dismissal?

Employees who are dismissed and have completed the qualifying period for continuous service are entitled to receive, on request (orally or in writing), a written statement giving the reasons for dismissal within 14 days.An employee dismissed during:

her pregnancy or maternity leave

his or her adoption leave

are entitled to a written statement of the reasons regardless of length of service and regardless of whether or not the request was made.

What is the notice period an employee should get on dismissal?

Employees are normally entitled to a minimum period of notice on termination of employment. The statutory notice period is:

at least one week's notice after one month's employment
two weeks after two years

three weeks after three years and so on up to a maximum of 12 weeks after 12 years or more of service

However, a contract of employment may state a longer period of notice than the statutory minimum.
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I can only think that given the information you have given us that your contract gives you a longer period of notice than the statutory minimum of a week and that has taken you past the 51 week barrier, otherwise it will be very interesting indeed as the Tribunal will effectively be setting a new precedent regarding statute.....I can't see that happening tbh.

Like I said, good luck and let us know the details when you can.
 
interesting...
Close to the edge

Finally a year is 51 weeks in unfair dismissal terms! There is only one thing worse than getting a call about dismissing someone at 53 weeks because the client forgot or miscalculated, and that is a call asking if it is okay to dismiss in the final few days of the year. If an employee is dismissed in the 11th month then employers have to be very careful to ensure that nothing they do could be construed as giving sufficient service to achieve 12 months service. With more senior people on say 3 months notice then care need to be exercised after 9 months. The way to avoid much of this worry is to have robust system for monitoring performance and not letting sub-standard employee get to anywhere near the 12 month mark. A formal review at 9 months should address most issues. If people are not really much good at 9 months then it is unlikely that any extra time will help.
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http://www.backuphr.com/human-resources-modload-news-article-105.htm


but more importantly according to these guys:

op said:
Firstly, i wasn't given a written statement, notifying me of their plans, i was not told what my meeting was about, and i wasn't given a chance of an appeal.
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backuphr said:
It is often forgotten that the right to be accompanied at disciplinary or grievance meeting is not dependent on service so make sure that employees are aware of their right to be accompanied at a grievance or disciplinary meeting and never deny then the right to be accompanied by a colleague or accredited Trade Unions official. This is a free standing right.
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Castiel said:
Those procedures MUST be stipulated in your contract somehow and you fit into certain criteria as listed below..... otherwise it wouldn't matter, 12 months service must have been completed (51weeks anyway) for you to have the right to a tribunal....it will be interesting to see what the tribunal says.



http://www.acas.org.uk/index.aspx?articleid=1797

Now the above stipulations are legally enforcable, the ACAS guidelines you have listed regards capability et al are not, however they can be taken into consideration when deciding whether a person was dismissed unfairly or not...





I can only think that given the information you have given us that your contract gives you a longer period of notice than the statutory minimum of a week and that has taken you past the 51 week barrier, otherwise it will be very interesting indeed as the Tribunal will effectively be setting a new precedent regarding statute.....I can't see that happening tbh.

Like I said, good luck and let us know the details when you can.
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I suspect it is in his contract but they have tried to shortcut.
When I have had to speak to employment specialists and had to make people redundant they thing they stress over and over is to follow defined policies to the letter.
As soon as you fail to follow your own policy you are likely to conceded at least a partial payout even if you canbe proven to have done everything else reasonably.

Good luck OP. What are you actually going for by the way, payment of reasonable notice or what?
I can't believe they would even consider reinstatement over this.
 
robskinner said:
I suspect it is in his contract but they have tried to shortcut.
When I have had to speak to employment specialists and had to make people redundant they thing they stress over and over is to follow defined policies to the letter.
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That is what I think also, I expect that he has a defined period of notice that has taken him over the 51wk barrier and his employer bodged up the dismissal by not taking that into consideration.


robskinner said:
Good luck OP. What are you actually going for by the way, payment of reasonable notice or what?
I can't believe they would even consider reinstatement over this.
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I doubt that could give reinstatement anyway as that would mean firing the incumbent.....they will, if he is successful have to compensate him although given the length of service I doubt that will amount to very much.
 
wez130 said:
I've just had a word over the phone to a solicitor, and basically, they have me over a barrel, whether they dismissed me correctly or not, they don't need a reason to dismiss me within 12 months, which, i think that is appalling. It basically means that an employer can employ you for 50 weeks then fire you for no reaseon and refill your position, so that they don't risk being taken to court. Apparently, it's going to increase to 2 years service before you are entitled to rights now.
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From the other end of the barrel I actually think that is a good thing for responsible employers. Time and time again I have had to argue it out with ACASS over the most irresponsible and invented reasons (for unfair dismissal) you could imagine simply because some worthless scrout wants to take you for some money.
 
wez130 said:
I've just had a word over the phone to a solicitor, and basically, they have me over a barrel, whether they dismissed me correctly or not, they don't need a reason to dismiss me within 12 months, which, i think that is appalling. It basically means that an employer can employ you for 50 weeks then fire you for no reaseon and refill your position, so that they don't risk being taken to court. Apparently, it's going to increase to 2 years service before you are entitled to rights now.
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Thats WRONG! I worked for ACAS and they will back you in a case of constructive dismissal. You have the same rights as a person that's been in the job for 50years, after your "trial" period is over your rights are engrained in law. Because your position is being filled by a "Friend" it becomes Constructive and there for different from a standard dismissal, the rules are changed by this.

Get on to ACAS ASAP!!

OOPS should really read the whole thread before commenting :D
 
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I've been following this thread with interest. First of all Wez, I'm glad that you found a new job within a few days of the bad news. For me personally, I would have gone down the tribunal route too. Not for financial gain, the inconvenience caused, or for self-satisfaction, but I would have done it out of principle. They essentially replaced a better performing employee with one of their asslickers. Anyway, thanks for updating us with the May news and good luck for the tribunal.
 
BigBoy said:
Thats WRONG! I worked for ACAS and they will back you in a case of constructive dismissal. You have the same rights as a person that's been in the job for 50years, after your "trial" period is over your rights are engrained in law. Because your position is being filled by a "Friend" it becomes Constructive and there for different from a standard dismissal, the rules are changed by this.

Get on to ACAS ASAP!!
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How can it be constructive dismissal when he was actually dismissed, he did not resign or leave on his own accord, he was sacked?

You worked for ACAS yet you don't know that simple distinction, as well as knowing that ACAS codes of practice are not ingrained in Law, they are guidelines not statutes. There are statutes in employment law but we have covered these already.
 
Wez, has the company owner's best friend now taken your old position?
Also, good luck with your tribunal, I hope you get some compensation out of it, as it sounds like you weren't "one of the boys".
 
sunama said:
Wez, has the company owner's best friend now taken your old position?
Also, good luck with your tribunal, I hope you get some compensation out of it, as it sounds like you weren't "one of the boys".
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I'm not Wez, but yes I read that they did.

Also wish you good luck for Weds!
 
Castiel said:
How can it be constructive dismissal when he was actually dismissed, he did not resign or leave on his own accord, he was sacked?

You worked for ACAS yet you don't know that simple distinction, as well as knowing that ACAS codes of practice are not ingrained in Law, they are guidelines not statutes. There are statutes in employment law but we have covered these already.
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Forgive my alcohol soaked brain!

It becomes constructive because the position was filled by a friend of the new manager, the dismissal was constructed to employ the friend there for it changes things.

By law the only way you can remove a person from a position and refill that position is by either sacking said person for wrong doing / negligence (not performance as this is not wrong doing) or by making the position not existent and having no need for the person, but in the latter case they cannot employ anyone in a position that has the same job title due to the position not being needed!
 
BigBoy said:
Forgive my alcohol soaked brain!

It becomes constructive because the position was filled by a friend of the new manager, the dismissal was constructed to employ the friend there for it changes things.

By law the only way you can remove a person from a position and refill that position is by either sacking said person for wrong doing / negligence (not performance as this is not wrong doing) or by making the position not existent and having no need for the person, but in the latter case they cannot employ anyone in a position that has the same job title due to the position not being needed!
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That's not constructive dismissal.

Edit:

http://www.direct.gov.uk/en/employment/redundancyandleavingyourjob/dismissal/dg_10026696

Constructive dismissal is when an employee is forced to quit their job against their will because of their employer's conduct.
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BigBoy said:
Forgive my alcohol soaked brain!

It becomes constructive because the position was filled by a friend of the new manager, the dismissal was constructed to employ the friend there for it changes things.

By law the only way you can remove a person from a position and refill that position is by either sacking said person for wrong doing / negligence (not performance as this is not wrong doing) or by making the position not existent and having no need for the person, but in the latter case they cannot employ anyone in a position that has the same job title due to the position not being needed!
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You certainly can dismiss someone for poor performance, in fact anyone with under a years service (now two) can be dismissed for practically any reason......and no matter what a persons service, if their performance is not up to standard and the correct procedures are followed then you can dismiss them, in some cases summarily.

Wez was dismissed because of alleged poor performance and lacking the required capability for the position......both valid reasons for dismissal especially with under a years service....however, it appears that they did not follow their own stipulated contractual obligations, so Wez is able to take it to a tribunal as an automatically unfair dismissal, it appears from the information we have that it is the employers failure to not follow their contractual obligations to Wez that are the basis for the tribunal, not that he was dismissed for poor performance.

There is nothing constructive about it.
 
Thanks Castiel, my blood stream has a rather large quantity of rum running through it at the moment and I believe it would be a good idea for me to go to bed! ;)

I cannot remember the correct term at the moment and for some reason Constructive Dismissal sounded right and got rather stuck lol.
 
Castiel said:
You certainly can dismiss someone for poor performance, in fact anyone with under a years service (now two) can be dismissed for practically any reason......and no matter what a persons service, if their performance is not up to standard and the correct procedures are followed then you can dismiss them, in some cases summarily.

Wez was dismissed because of alleged poor performance and lacking the required capability for the position......both valid reasons for dismissal especially with under a years service....however, it appears that they did not follow their own stipulated contractual obligations, so Wez is able to take it to a tribunal as an automatically unfair dismissal, it appears from the information we have that it is the employers failure to not follow their contractual obligations to Wez that are the basis for the tribunal, not that he was dismissed for poor performance.

There is nothing constructive about it.
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Nail hit head. Acas code of practice regarding poor performance, is echoed in my contract and staff handbook. So at the very least, yes, they have not followed their own procedure. However, i can also disprove their reasons for my poor performance and prove that i was infact performing well within the company, and my dismissal was a cover up to employ the new managers friend. Well, i could have done, but the respondent has failed to follow tribunal orders in respect of providing myself with their witness statements on time, and providing me with the evidence i requested, and relied upon altogether. This is not going to paint the respondent in a very good light, as i was advised to be sure that i followed tribunal orders strictly, and have done, and they may not be use the evidence they intended to use against me in the case now.
 
BigBoy said:
As per your quote, was the op not forced to leave his position by dismissal (not his own free will) and was it not due to the employer failing to follow correct guidelines?
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No, the person has to choose to leave, but are forced to make that choice due to the actions of the employer or the environment created.

If you're fired you're not choosing to leave.
 
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