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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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I am an electrician the company that i worked me on

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I am an electrician the company that i worked for put me on a short course to gain a city and guilds testing and inspection qualification, they informed me that if i did not pass then i would be dismissed, as they now classed this as an essential qualification ( not legally) . I failed the exam and i have been put on gardening leave for 3 months, my question is , they have stated verbally and in writing that i have been dismissed due to misconduct , i find this very harsh as apart from not doing anything wrong this would not bode well for future employment (misconduct) when asking for a reference. HR advised just to be honest with any future employer.So are they rjight in dismissing me under the misconduct charge.
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. How long have you worked there for?

Customer:

I had my contract tup over from the company who where contracting to them, so adding my previous time it came to a total of around 6 years. They told me in writing that dismissal would be an option, i have no problem with this , its the fact of using the term misconduct in any references i may need in the futurr

taratill :

When was your contract terminated by them? Was it always a requirement that you have this qualification?

Customer:

I am on gardening leave from feb 10th until may 10th this will be my last day of employment and i will be paid monthly with my last pay being 28th may. It was not an essential requirement and was not asked for when i started working for them that i had this qualification.When they put me on the 4 day course in feb 2014 they told me that it was now part of my person specification.In my letter of dismissal they have said i quote,

Customer:

as an electrician, this qualification is an essential part of your job and your employment cant continue if you dont hold it.

taratill :

Was this the same for your original employer? (pre tupe?)

Customer:

My original employer took me on as an electrician, the testing and inspection qualification is not a legally bound qualification.The work for my original employer and my present employer is in the housing association sector, it is my present employer who has now made it an essential qualification, i am just confused with there statement of dismissal due to misconduct, i do not see not passing an exam as misconduct.

taratill :

I understand your concerns about the misconduct but I think you may have further employment rights. What I'm interested in is why if it was not a requirement for your previous employer it is now a requirement for your current one? Is it their requirement or does someone external require it?

Customer:

The company that i am with have just become part of the eic , on there certificates for testing and inspection there is a block where the person testing signs ( a competant person) and a block where a registered person signs. A lot of companies work this way but i was told that to do this they would have to have someone always checking the work, and now belonging to the eic if they were to ask are your electricians competant they could say they all have the testing qualification so we could tick all the boxes. As i know when applying for jobs some companies will ask for it, some dont and some say would be a bonus but not essential. I do not know if its for insurances purposes i was just told it is a company decision and there way forward.

taratill :

Ok well under TUPE laws they are not allowed to do this as it amounts to a change in terms and conditions and is void. You can appeal against your termination and complain for unfair dismissal and breach of tupe laws.

taratill :

To answer your question about calling it misconduct this is clearly not the reason for the dismissal. If they use this it backs up your claim for unfair dismissal. If they say you are dismissed for misconduct in any references to future employers this amounts to negligent misstatement and potentially you can sue them for any loss of future earnings if you are not sucessful in obtaining a job for that reason.

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:

When we tupe over they got us all to sign new contracts, as far as im aware the only difference was that i had written into my contract that i would not do call outs and i would go from weekly to monthly pay.

taratill :

when a tupe transfer occurs it is unlawful for a new employer to get you to sign new employment. The purpose of the TUPE laws is to protect historic employment rights. I would suggest you take the action I have suggested.

taratill :

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

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