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Kasare
Kasare, Solicitor
Category: Employment Law
Satisfied Customers: 1301
Experience:  Solicitor, 10 yrs plus experience in civil litigation, employment and family law
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If I have been dismissed after working company

Customer Question

If I have been dismissed after working for a company for one year and one month and the company has a disciplinary policy which was not followed can CAN make a claim for unfair dismissal?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Kasare replied 2 years ago.
Hi thanks for your question, I will assist you with this.
If your employer has a contractual disciplinary policy but does not follow this then your employer will be in breach of contract for failure to use this in your dismissal.
As you were employed for less than 2 years (the law changed in April 2012 to increase the years service from 1 year to 2 years continuous service for unfair dismissal claims), you cannot bring a claim for unfair dismissal. But as you were dismissed without your employer following a contractual disciplinary policy you can bring a claim for breach of contract in the County Court or what is termed as wrongful dismissal (i.e. dismissal in breach of contract – regarding the notice period and loss of salary over the period in which the disciplinary period should have been followed).
If your employer has paid you notice pay, then in reality the damages will be limited to the loss of salary over the period in which a disciplinary procedure should have took place.
Is there anything else I can assist you with?
Kas
Customer: replied 2 years ago.

Thank you very much for your answer. - only have one further question. How does one determine if you have a contractual disciplinary policy. Thanks

Expert:  Kasare replied 2 years ago.
Hi
Sorry, "contractual" disciplinary policy is part of the policies and conditions that your employer has made you aware of.
You have said that your company has a disciplinary procedure, this is likely to be written in the company handbook or other guidelines. At part of the terms and conditions of your employment you agree to adhere to the company policies and they have set these out. This is part of your contract (i.e. contractual policies).
Does that make it clearer?
Kasare and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Hello I have appealed against my dismissal based on that none of the Disciplinary Policy and Procedure was followed. Should I also be raising a grievance, under the grievance policy as well?

Expert:  Kasare replied 2 years ago.
Hi John
If you have appealed citing failure to follow disciplinary policy then there is no need to file a separate grievance.
Expert:  Kasare replied 2 years ago.
Hi John,
Did you have any other questions? Perhaps on the breach of contract issue?
If so, please ask. If not, I would be grateful if you could accept or rate my answer (positively is much appreciated!)
Kas
Customer: replied 2 years ago.

Hi Thanks for the reply.

I have has a letter back from my appeal stating that there will be an investigation and my appeal will be heard by the chair of the board. In your view surely the appeal will be upheld because there was no disciplinary process followed at all. If that is the case what do you think will happen, do you think that I would be reinstated put on gardeners leave and then they will go through a disciplinary procedure? ie the appeal hearing is based breach of contract or what they want to discipline me for? To further complicate matters I have stated in my appeal regarding some other points that the ceo had done which was in proper and perhaps he realy dismissed me because I was going to report him ie "whistleblow" (they were to do with tax and accounting issues.)Your view would be appreciated.

Expert:  Kasare replied 2 years ago.
hi John
The company could still uphold the dismissal, but accept that it failed to follow the correct procedure and therefore pay you for the additional time (i.e. the amount of damages you could claim for breach of contract).
When you appealed the dismissal you should have stated the reasons you considered the dismissal to be unfair/unreasonable (NB: using the word "unfair" does not qualify you for unfair dismissal in this instance given your years of service), not simply the failure to follow the correct procedure. It would appear, from what you state, that you have included reasons why you believe you were dismissed and so they should take that into account in their investigations.
In reality the company should conduct this investigation quickly and come back to you with their decision. If they decide to uphold the dismissal then they should simply offer you payment for the period of time for the investigation. If they accept the dismissal was unfair or unreasonable then you should be reinstated and paid for the period you have missed.
Customer: replied 2 years ago.

Hi today I may have secured a job and they want a ref from this employer. Given the appeal and breach of contract could I offer a compromise agreement in return for a reference and resign if I am still not considered dismissed?

Expert:  Kasare replied 2 years ago.
Hi John
An employer cannot give a "bad" reference and to avoid any issues these days, employers often give a standard reference stating basic details.
At present you are dismissed so you cannot resign. However, you can offer a compromise to your employer as you suggest. I would suggest that you speak to your "employer" and advise that given the circumstances even if their investigation finds that your dismissal was incorrect and unfair their is a breach of trust and confidence and as such you propose not taking matters forward nor seeking the additional wages you could if you are allowed to resign and they provide you with a full reference. But you would have to wait to see their response.
Alternatively, you could inform the potential new employers of an issue. It should not make a difference or prevent them offering you employment but it could.
Customer: replied 2 years ago.

If I contact them by letter it should be on a without prejudice basis? Thanks

Expert:  Kasare replied 2 years ago.
Yes, as you are attempting to negotiate a settlement to the issue.
Customer: replied 2 years ago.

HiCustomer/p>

As a follow on I have received a letter today offering me a settlement agreement:

ex gratia payment of £2,000.00

4 weeks notice

Agreed Reference

£300 towards legal costs

what do you think?

Expert:  Kasare replied 2 years ago.
Hey John
I think that is a very good result! Even better with a potential new job on the horizon.
For this type of claim this probably what you would have been looking at in any event - so it saves both sides costs.
The only thing is that I would try and get the solicitors costs up - this will be for advice on a formal compromise agreement. Most solicitors will charge between £400-600 and what your employer doesn't pay you will have to.
But before you go back to them speak to a solicitor in your area that can assist with compromise agreements and get a quote from them - you could try one or two and then you have a figure to go back to your employer with.
Well done and good luck.
Please don't forget to ask for me if you need anything else!
Kas

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