Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What specific queries do you have about this?
I need to know please what my rights are.My employer has said in my termination letter that he viewed my actions as being evasive. I do not have the same opinion. My employer has confirmed that he does not know if my actions were evasive, he was just accepting the views of the Compliance lady who have told him, but my problem is that I was criticising compliance procedures which I did not think were tight enough
I need to know whether the 5 working days he has given me to appeal is lawful or whether I have grounds to appeal which exceed 5 working days so that I can prepare a way forward. I can only appeal to him, is this fair? The company is very much a one man band. I was given no warnings and he refused to have on-going weekly meetings when I requested them, saying there wasn't sufficient time. He is giving me 2 months money (in compensation for 5 months work) and has said that this is not a termination of employment just an acceptance that the probationary period has not been fulfilled.However I have to give a reason to a future employer why I left my previous employer and I have to tick the appropriate box. If I appeal and lose, will I lose the 2 months compensation? He has implied I would. I have to appeal to clear my name as I work in an industry which is reliant on honesty and I have a reputation in the industry which I need to maintain. Do I have the same rights as someone who has been employed for a longer period of time? Can I ask my employer what grounds he has that I was evasive (the whole thing has been a misunderstanding, but is an excuse to get rid of me as I was asking too many questions about compliance). What are the implications of appealing? I do not want my job back,I just want to clear my name and move on. What grounds do I state for the appeal? I was treated unfairly and the wrong interpretation was given to an incident. Many thanks. Joanna
If you have been continuously employed at your place of work for less than 2 years then your employment rights will be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). In the event that the reason for dismissal fell within these categories, then the dismissal will either be automatically unfair, or there will be a potential discrimination claim.
If the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period. Unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period. If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. Your employer would either have to allow you to work that notice period and pay you as normal, or they will have to pay you in lieu of notice.
If you were not paid your notice period when you were due one, that would amount to wrongful dismissal (which is different to unfair dismissal) and you could make a claim in an employment tribunal to recover the pay for the notice period that you should have been given. There is a 3-month time limit from the date of dismissal to submit the claim.
In terms of the appeal, there is no legal time limit to submit an appeal and it would depend on the employer's policies. A 5 day limit is probably the most commonly applied period and entirely legal. If you miss this deadline the employer can refuse to hear your appeal and you will not be able to take this to anyone else, unless the discrimination reasons apply as mentioned above.
By appealing you are only seeking one outcome and that is to get your job back although you can make it clear to the employer that the reason you are appealing is to try and challenge the reasons for the dismissal rather than to ask for your job back. To be honest the employer can refuse to pay you any extra compensation on top of what your contract entitles you to, regardless of whether you appeal or not, or whether you lose the appeal. At this stage it is just a discretionary offer that can be withdrawn at any time
has this answered your query?
I need a reference, is my old employer obliged to tell my new employer that I was dismissed? My old employer is saying this does not constitute a dismissal just that the probationary period was not fulfilled. This appears to have happened twice before. The employer takes on staff after one interview and seems to get rid of them very quickly if the staff do not like them. I have done nothing wrong, just my face didn't fit with one person who had the employer's ear. I am going to ask to see my employer and ask him to retract the dismissal on the grounds of evasion. Is evasion defammatory? I am certainly insulted and I do not believe I acted in any way evasively.
Technically it is still a dismissal and they can mention that if they want to. This is not defamation but when providing a reference the employer will automatically owe you a duty to take reasonable care in the preparation of the reference. This basically requires the employer to be accurate in the contents of the reference and ensure it is based on facts, rather than personal opinion.
Thanks Ben. Please could you tell me if my employer has followed the correct procedure? I was given about 20mins notice of a probationary review meeting after 5.2 months employment. I had been told my work was good but there was an incident when I acted totally professionally but my employer's opinion was that I acted evasively. Can I ask my employer to retract the reason for the dismissal? There are no facts that I was evasive. He has said if I appeal, he will have an open mind. I feel very unfairly treated and this might prevent me from getting a future job. Many thanks. Joanna
There is no issue about the procedure followed - no special procedure needs to be followed and you have no rights when it comes to this specific aspect of the dismissal, plus the employer can dismiss without even giving a reason. I would suggest that you consider appealing and also discuss with the employer the issue of references - perhaps ask that just a short factual reference stating your dates of employment and job is issued instead of going into any details about what happened
Thanks Ben. He has said that he will give me a reference which focusses positively on my attributes. Most applications for jobs these days require a form to be completed asking the reason for leaving various past employments. Options being, redundancy, dismissal, termination, resignation etc. I have asked him if this constitutes a termination and he has replied that it doesn't, just that the probationary period hasn't been extended. He said I was too corporate for the company ( I have had 28 yrs in the city). I basically took a compliance issue very seriously and tried not to land a colleague in it. He thought I was trying to wriggle out of the situation and has called my actions evasive but has not specified which act/word was evasive. There are no facts to support his case which is entirely subjective. Many thanks. Joanna
Many thanks Ben. That's been very useful. Regards