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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48771
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello, I wondered if it would be possible to request some advice

Resolved Question:

Hello, I wondered if it would be possible to request some advice regarding my current work situation. It's a fairly complex matter but I will do my best to explain as fully & as best as I can.

I have been working for a company now since the 13/6/12, however I must mention that at first I was working only one day a week, I was not under contract & added to their payroll until 13/9/12 when I went full-time. Things have become very difficult within the workplace for the past year as I have experienced bullying & harassment from the MD of the company.

The company is small with only 5 employees; 2 female, 3 male (not including the male MD). Myself & my female colleague are constantly undermined in our roles & are excluded from meetings with male colleagues that take place on the premises but also at the MD's home in & out of work time. These meetings are long, they have become more frequent in the past month, particularly one's being held off premises. The MD will not speak to me directly & rarely acknowledges me, instead he will use a male employee to pass messages along but he will speak to my equal counterpart (who is male) directly. There have been many incidents in the past 12 months that have been particularly intimidating, offending & unfair.

A few weeks ago I was unwell and was unable to attend work, I followed the correct procedure set out in my handbook & self certified my sickness as it was for one day. The company operates SSP & does not outline a company sick pay scheme however for another period of sickness, I was paid full pay but this time it was refused. I was unable to ask for grounds of refusal as this message was passed on from another member of staff that had visited him at his home & I did not see the MD for over a week after this. I am aware that male staff have been paid for their days sick more recently.

Following this I contacted ACAS discussing all issues & events in the workplace. They suggested that I raise a grievance formally to see if things could be resolved. They also mentioned the possibility of this making things worse. I thought about this; I decided that I would seek alternative employment as this would be the best thing for my wellbeing.

I did this & decided not to confront the MD regarding the grounds of refusal of sick pay as when the opportunity arose 2 of my colleagues, my equal and the other female, were on annual leave. In this situation I am left in a studio alone, working separate from all others. On Monday of last week (16th June) the MD arrived for the first time in over a week & entered the premises, bypassing my area of work. He did not attempt to acknowledge me. I entered the other room & said good morning to him, he replied.

On Wednesday I was called into the office at 4:15. I was not given any privacy as the door was left wide open when the MD suspended me from my duties, he would not discuss it & said that I would receive a letter outlining the reasons for this. He did not say how long I was suspended for & that it would be on full pay, he then asked me to clear my desk. He left as I tried to ask him what was happening & drove away.

I contacted ACAS again, they informed me that I still had my employment rights & that I could still raise a grievance. I did this & submitted it to my line manager at 8am Friday. I received a letter at 9:30. The letter did not explain the reasons for my suspension, instead a letter of dismissal. The letter states that I am not entitled to reasons & that I cannot claim unfair dismissal as I do not qualify.

I have not had any disciplinaries. My contract outlines a non-contractual disciplinary procedure, dismissal being a last resort. It states that is does not apply to those that have worked for the company less than 1 year. It also states that suspension is used in the event of gross misconduct which I have not committed. I have appealed this & I am being paid the correct notice.

The company has been negotiating a sale / merger with another, could this be a way of making me redundant without taking the correct steps? I am extremely confused, surely dismissal has to be fair regardless of length of service. How do I know it is fair if I have no reasons? The fact that I haven't been given reason is another form of psychological bullying. What do I tell potential employers? Is it gong to effect my chances of getting another job? What are they telling clients that are asking after me? This is extremely damaging and I given my absolute all in that job and have proof that I am a competent worker as I initial everything I do and keep time sheets of work carried out.

Thank you for your time and consideration.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

Have you been told why you do not qualify for unfair dismissal?

Customer:

Hello Ben, I have been told that I do not qualify as I have not worked there for two years. I have made an error in my initial question regarding start date 13/6/12 should be 13/7/12.

Ben Jones :

Thank you. Did you have a contractual notice period for termination?

Customer:

My contract stated that I am entitled to receive one weeks written notice to terminate employment since I have worked for more than one month but less than 2 years. It doesn't state whether this is contractual or non contractual.

Ben Jones :

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.


 


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.


 


So the only thing that stands out here is whether the dismissal had anything to do with your gender. Was it the reason why you were chosen for dismissal, because of that was the case it could make the dismissal automatically unfair and you could claim sex discrimination. However, some evidence would be required and you are also relying on the employer not having any other genuine reasons for dismissing you, which are not gender-related.


 


What you could do is try to conciliate with them through ACAS. Before you can submit any claim you will be expected to mediate via ACAS so you could try that and see if you get any compensation from the employer. If that is not possible then you have to consider if you wish to pursue the matter further by making a claim, although consider it would cost over £1k to do so.

Customer:

Thank you Ben, that's the conclusion I am coming to due to past events. I don't know for sure as I haven't been given reasons, am I entitled to this? I can't understand the reason for the 2 year rule, unfair is unfair but unfortunately because of a law that seems to be ever changing I am going to have to suffer for it.

Ben Jones :

you are entitled to ask and to be provided with written reasons for dismissal. This is a right under the Employment Rights ACt 1996:

http://www.legislation.gov.uk/ukpga/1996/18/part/IX/crossheading/written-statement-of-reasons-for-dismissal

I know that many employees will be caught short by the 2-year rule but unfortunately it is the law at present - you still get your protection against automatically unfair dismissals and discrimination, but the lawmakers decided that employers needed some rights as well as they were constantly being sued for trivial reasons by dismissed employees

Customer:

Thank you, ***** ***** done this by appealing. Does the employer have to follow this up?

Ben Jones :

follow what up exactly?

Customer:

My letter of appeal, requesting reasons for dismissal?

Ben Jones :

yes they should do, you have the right to receive these as you have worked there for more than a year

Customer:

Thanks, ***** ***** that this should be done within 14 days of it being received. Am I correct?

Ben Jones :

correct

Customer:

Thank you. Hopefully I will get some explanation, if not then not sure how I am supposed to move on.

Customer:

Thanks for your time.

Ben Jones :

you can still try the ACAS conciliation service - it's free and can prompt some answers from the employer

Customer:

I shall look into it, thank you for the advice.

Ben Jones :

you are most welcome, all the best

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