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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I recently asked a question regarding dismissal under zero

Resolved Question:

I recently asked a question regarding dismissal under zero hour contract,my contact with your team was Ben, would he be available to help with the response i received based on the guidance i was given?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello again, how can I assist today please?

Customer:

Attachment: 2014-10-28_084248_oct_27th_reply_2.pdf

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HI, not sure if you remember my questions of last week regarding termination of zero hour contract? i wrote to the employee via email and explained that we had taken legal guidance and as a result no further payment was outstanding. I detailed how the final payment was calculated and advised that in fact he had been overpaid. He has now responded please refer to attachment ,

Customer:

thankyou

Ben Jones :

Ok well first of all it is definitely not an unfair dismissal to terminate someone’s employment whilst they are on sick leave – dismissal can occur at any time, regardless of whether someone is off sick or not. No special procedures have to be followed if someone is off sick and all that matters is the employee’s service and whether there were any specific dismissal procedures in their contract. The steps they list only apply to employees who can claim for unfair dismissal, i.e. those with more than 2 years’ service and as they do not have that they cannot challenge the procedure used in the dismissals process. This would only be a potential argument if the employee was off sick with a condition that amounts to a disability, which must be a long term condition that lasts for more than a year and has a substantial effect on their ability to carry out their daily activities, so if this was not such a long term condition none of what they say would be a valid argument.

Money for week commencing 29 Sept – this would really depend on when he went officially on sick leave. So he would be paid as per normal for any time worked until he went on sick leave and once the sick leave officially started, which is when he would have called in sick and submitted a sick note he would then be entitled to SSP.

Overpaid holidays – if you had specifically promised to pay him the said holidays even though they were not accrued then you should honour this.

Apart from that the claims that he can claim unlawful/unfair dismissal will not stand up – as mentioned it really does not matter whether he was dismissed during sick leave or not – what matters is whether he had he 2 years’ service and if he did not then he cannot claim unfair dismissal, whether he was off sick or not.

Customer:

Hi, the dates are as follows:

Customer:

we pay a week in hand, w/c 22nd sep paid in full 3rd oct

Customer:

w/c 290914 paid in full 10th oct

Customer:

w/c 061014 paid in full 10th oct (this being final payment ) . He was issued with a letter on the 9th October advising of situation .

Customer:

With regards ***** ***** 5 days holiday over payment i will look into the matter, however it was already stated that we would not be recovering the amount. Due to the delicate nature of this matter would it be possible that you could pen a letter as a response to his?

Customer:

many thanks

Ben Jones :

ok so if you had paid him in full for weeks when he did not actually work and was off on sick leave, assuming he is not entitled to any full sick pay, all he would get is SSP so he would have been overpaid, therefore you need to work out when he was off sick and for those dates he would only get SSP. Unfortunately we do not offer drafting here, we are only a Q&A service

Customer:

Ok thankyou, i will respond on the information you have given, but just to be clear , i will advise that he is due SSP and pay that in full, however further to that we will not be making any other payments and his argument regarding unfair dismissal is not applicable, is that correct?

Ben Jones :

yes correct

Customer:

Thank you again!

Ben Jones :

my pleasure

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