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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48196
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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In uk law does an employee with less than 2 years service

Resolved Question:

In uk law does an employee with less than 2 years service have the right of appeal if terminated immediately and not given the right to be accompanied?
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. Can you please explain your situation in a bit more detail?

Customer:

Started work on the 31st May 2013. Terminated on the 5th September 2014 without notice and escorted from the building like I had committed gross misconduct. My manager cited poor performance but I was not on a capability or given the opportunity to improve. I was also denied the right to appeal the decision. In the meeting I was not able to give my mitigation of even my account.

Customer:

Sorry....I have been paid for 2 months and my notice was a month. I month PILON. My season ticket loan was also written off. My pension was stopped and cancelled.

Customer:

I work in HR and can tell you that all employees are given the opportunity to improve if underperforming. Why have I been treated differently. We have a extensive capabilty policy as we have a number of employees in recovery. So we allow for that. There has been no allowance for me and I have been humiliated by being frogmarched from the offices.

Customer:

Is there recourse for me to get more money as if I were put through the capability and failed that would have been an extra 3 months. I could have succeeded then I would not necessary be unemployed now. My pension contributions should have continued until the end of my notice but they have cancelled it, so are they in breach of contract can I claim wrongful dismissal for the company not following their own policy. I would ideally like an extra 2 months as I believe that is the usual time frame to improve performance.

Ben Jones :

Does the contract say that you can be terminated by being paid in lieu of notice?

Customer:

yes

Customer:

Hello

Ben Jones :

then the employer has not acted in breach of contract because they have the contractual right to pay you in lieu of notice and that terminates all liabilities under contract the day it is exercised.So it means they can terminate your employment immediately by paying you the equivalent of your notice period, but they would not have any further liabilities to pay you for what you would have earned had you continued to work through your notice period, so you cannot expect any pay for holidays, bonus, commission, pensions, etc. Had there not been a PILON clause then they would have acted in breach of contract

Ben Jones :

Also you cannot claim for not being given the right to improve unless this was a specific contractual policy which the employer would have been obliged to follow. If this was just something that happened to others but not written down in your contract it is not a breach of contract on the employer's side not to allow you the opportunity to improve

Ben Jones :

You also cannot claim for being denied the opportunity to appeal - you can only claim this if you have more than 2 years' service

Ben Jones :

the best you can hope for here is if you had requested to be accompanied at the dismissal hearing but the employer refused to allow that, then you can claim up to 2 weeks' pay compensation but to qualify you must have requested to be accompanied and the employer must have unreasonably refused for that to happen

Customer:

I did not have the chance to ask as once I was called in it was over. I was not given notice of the meeting.

Ben Jones :

well that is something you can argue over but the most you would be entitled to would be 2 weeks' pay but it also means that if the employer refuses to pay you then all you can do is take it to a tribunal and argue your case there

Customer:

So if it goes to tribunal would they look at documentation to substantiate the poor performance claims as there are none. If I was perfomance managed and I failed then I would understand and leave it. If she terminated for SOSR then I would understand. But she claimed she performance managed me which is untrue.

Ben Jones :

No this has nothing to do with the claim you are making, all you will be arguing is the failure to be given the chance to be accompanied. You cannot challenge the reasons for the dismissal, or the dismissal itself

Ben Jones :

This only applies after 2 years service

Customer:

ok thank you for your information. I knew it was not a long shot but better to be sure.

Ben Jones :

you are welcome, all the best

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