Ben Jones :
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.Can you please tell me how long have you been with your employer
Ben Jones :
OK thank you, XXXXX XXXXX it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you
Ben Jones : Many thanks for your patience. The issue with you position is that if you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately 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, and without following a fair procedure, 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, however I can see no evidence that this is the case here.
Ben Jones : 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, because 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.
Ben Jones : So you need to think carefully about which route to go down bearing the above in mind. If it is likely that they may dismiss you eventually before the 2 years are up and that could result in a dismissal on your record and perhaps a negative reference, you may wish to consider the first option where you leave amicably and with a guaranteed reference and a pay out, it may be best to do that so at least you know where you stand rather than face the uncertainty of performance management and a eventual dismissal.
Customer: Many thanks for the response. Would your understanding therefore be of a tax free sum greater than one months salary includes one months payment in lieu of notice, or would your assumption that the use of the phase tax free lump sum would be over and above pay this figure as a form of compensation. Granted it would seem my legal position is possibly almost non-existent then. In which case the law provides no protection in my situation and they can do what they like and act irresponsibly should they decide to do so, without any challenge being possible from me to defend myself?
Customer: Having not received anything in writing and asked to make a decision based on a loosely phased brief discussion I don't know how to respond to my employer on Monday when they ask for my final decision. Although I would agree I am inclined to accept a settlement of some description.
Ben Jones :
Well in these circumstances you are only going to be entitled to the following on termination:
- your contractual notice period, or 1 week' notice in the absence of a contract
- any accrued holidays up to your date of termination
You certainly have the right to question their offer in more detail to see whether they are offering you a sum in addition to your notice period or just to cover that period. If it is on top of the period then it will already be more than what you are entitled to by law and should certainly consider it. In terms of challenging their actions, sadly if you cannot show it was due to discrimination, there would be no grounds to do so.