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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6305
Experience:  15 years experience of advising on employment law matters
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My employment was terminated without warning and the ACAS code

Resolved Question:

My employment was terminated without warning and the ACAS code of conduct 2009 was ignored as I was employed for 21 months 12 days and the employer invoked a pylon clause to pay salary due instead of notice. to effectively reduce my period of continuous service to below the 2yr threshold. This termination was 1.5 days before I was due to break for Christmas and 1.5 days before the end of the bonus period 1/1/14 to 31/12/14.
1) I believe I may have cause to challenge this as unfair dismissal but only if I can prove breach of contract? In my employment contract they can terminate my employment with cause and the cause stated was "underperformance in the role". Are they obliged to specify the underperformance? I have asked for this twice and they have refused. There were no written or verbal communication whatsoever regarding my performance until I was sacked at an existing meeting.
2) The company have also refused to confirm my performance to target twice, do you think there could be grounds to take action through the small claims court/process for bonus monies due and not paid, considering that I believe it's likely that I did exceed the bonus payment criteria?
Many thanks,
Graham
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today. Do you have reason to suspect you have been discriminated against on the grounds of age, race, religion, disability, sex, pregnancy or for raising a health and safety or other whistleblowing type complaint?

Customer:

Sorry for the delayed response but I was called away from my laptop.

Customer:

Hi Jenny, I do not have any obvious indication that I have been discriminated on any of the above suggestions. I am a sales manager and was working with Tesco & Sainsbury's and as a business we were facing some significant challenges where I found it a real challenge to gain any traction or support so that could certainly be contributing factors? The thing is all they have said is underperformance, yet I firmly believe that the business that I was responsible for exceeded all targets which were actually only ratified at the end of November.

taratill :

Ok sadly the breach of contract argument will not work to give you adequate service to claim unfair dismissal. There has been case law on the point and even if the contract had not been breached you would have had adequate service the tribunal still does not have jurisdiction to hear an unfair dismissal claim.

taratill :

In a nutshell the employer can dismiss for (almost) any reason in the first two years. So long as you have been paid in lieu of notice then you will not have any further claim for the manner of the dismissal so long as it is not for a discriminatory reason as I have set out avove.

taratill :

With regards ***** ***** second question. If you have met bonus targets then you can claim in breach of contract for failure to pay the bonus.

taratill :

unfortunately the employer does not have to give written reasons for dismissal if you have been employed for less than 2 years.

taratill :

Sadly employment law does not protect employees very well in the first 2 years of employment.

taratill :

If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

Customer:

Sorry I have to dash again but only for c.40 minutes to collect my son from school. Really sorry to have asked the questions now. I hope it will be ok to rate your response when I get back.

taratill :

HI is there anything further I can help you with? I am very sorry I have not been able to give you the answer you wanted to hear.

Customer:

It is a despicable way to treat people, I have given two hard years of outstanding achievement and they refuse to help me by telling me where it all went wrong. It's very difficult to move on. It is the pylon clause of paying notice in lieu of working that prevented me completing the 2yrs, 16/12/14 + 3 months. I am unable to prove my performance to bonus as they refuse to confirm it. Part of the conditions for this would also be that I am still employed by them which again I am not - Does this void any claim even though I received a letter 1/3/14 stating I was to receive a salary increase and a merit bonus? Clearly something changed between March and December but no one said anything to me whatsoever.

taratill :

You have my sympathy and I totally agree that you have been poorly treated by your employer. Unfortunately this is an example of the way in which recent governments have acted to erode the rights of employees.

taratill :

With regards ***** ***** PILON clause, even without such a clause if an employer terminated your employment with immediate effect the day before 2 years service there would be no protection due to the 2 years service being strictly interpreted.

taratill :

With regards ***** ***** notice if the contract says you must be employed in order to receive the bonus.

taratill :

sorry that should have said with regards ***** ***** bonus if the contract says you must be employed at the relevant time then the employer will not be in breach of contract for failure to pay.

taratill :

Sadly I see this kind of thing happen too frequently and there is no protection if there has not been an act of discrimination.

taratill :

Again I am sorry that this is not the answer you want. It would be unfair of me though to give you false hope. I would be grateful if you would take the time to rate my answer as I am not otherwise credited for my time.

taratill :

I will be happy to answer any follow on questions you may have.

Customer:

Ok Jenny, thank you for your comments. I am grateful in one sense that it is clear and you do not raise my hopes. I guess there is a moral failure here that is allowed by the law and It's disappointing that such large companies can operate in this way and be protected by the law from individual people like me. I have rated your reply as good service, I hope you can agree.

taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6305
Experience: 15 years experience of advising on employment law matters
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