when i initially made the enquiry via your team i did explain that the employee was off sick with a note, for the week. This said, we had decided to re structure and manage the workload within the existing team . This employee was on a zero hour contract and your colleague asked if i thought that the employee would be off sick long term, which i replied no, based on the sick note stating one week absence. I was advised that we could terminate with one weeks notice, by letter. The employee has now written to advise that he has taken legal advice and we should not have dismissed him, albeit it that his contract was zero hours?? He is happy to settle based on a four week notice period, however we paid one week notice, one week holiday in advance, and one week to cover his sick which should only have been based on statutory. By our calculations at the very least if we are to pay on his terms he will be owed one week. My question is, he was on a zero hour contract which states hours will be allocated on a weekly basis, are we legally obliged in any way??
Hi, sorry it appears my follow up question was not posted earlier so will try again. Did his contract have a notice period mentioned?
please refer to extract from contract issued:
Except in cases of gross misconduct, (for example, violence, theft, gross negligence) when the Company reserves the right of summary dismissal (dismissal without notice or payment in lieu), the following periods of notice will be given by the Company:
<In the first month of your employment, your employment may be terminated by either the Company or you with no notice. Thereafter,> the Statutory Minimum notice to which all employees are entitled is one week. This increases by one week for every completed year of service up to a maximum of twelve weeks notice for twelve or more years service. In your case, after you have completed satisfactorily your probationary period you are entitled to a minimum of <1> weeks’ notice from the Company. When your service with the Company exceeds <1> complete years, your notice entitlement will increase by one week for each additional year of continuous service, up to a maximum of twelve weeks notice for twelve years or longer continuous service.
After you have satisfactorily completed your probationary period, the Company requires you to give at least <4> weeks' notice if you terminate your own employment.
The Company reserves the right to pay you in lieu some or all of your notice as an alternative to you working your notice period. The Company may apply this option, whether or not you have served any of the notice period.
The Company may require you to remain away from work and not undertaking any work for the Company for some or all of any notice period.
If the employee was employed for less than 2 years then they will not have protection against unfair dismissal and you could have dismissed them for more or less any reason, as long as it was not discriminatory, which does not appear to be the case here. So as they are not protected against unfair dismissal, the next issue is what notice they would have been entitled to on termination. Their contract states that in the circumstances they would only be entitled to a week's notice, which I presume you have given them. They will also be entitled to any accrued holidays at the time of dismissal, which have not yet been taken. Assuming you have paid him all that then he cannot claim for a 4 week notice. By law he would have received everything he is entitled to. I am not sure what legal advice he has taken, or if he has even taken any, but this could be an attempt to bluff you and try to get more out of you, however he would not legally be entitled to it. You can ignore these requests and if he really wants to pursue this then he will have to pay a substantial sum to take this to tribunal but assuming you have paid him as stated above he would not have a claim anyway
Hope this clarifies your position? If you could please let me know that would be great, thank you
Hi Ben thank you for your reply, just to be absolutely clear, the employee was off sick on a weeks sick note, the changes were decided within this period and i did contact your team to make sure before i wrote to the employee and advised him that we could not allocate him any more hours and his contract was terminated. Does your previous reply still stand, many thanks
Hi, yes the previous response still applies
you are welcome, all the best