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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46173
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Can I claim dismissal? - Employed months.

Customer Question

Can I claim for wrongful dismissal? - Employed for 14 months. No formal warnings and no gross misconduct on my part.Was not informed about dismissal and they would not let me defend myself as they had made up their minds.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Remus2004 replied 1 year ago.
Hi
Thank you for your question. My name is ***** ***** I will try to help with this.
-Could you explain your situation a little more?
Customer: replied 1 year ago.
Hi Jo,
I have been working as a full time Property Surveyor with an Edinburgh Estate Agent for 14 months - On Friday 6 November I was asked to attend a meeting - when I sat down he said H/R person will take note he said it was not a disciplinary and I said I am fine I will not need anyone in the meeting with me - he then said was letting me go as I have not done the things they had asked! I tried to put my point across but he shut me down. He asked for me to give him my mobile phone - I did this but he then said I would have to work 2 week notice or I would not be paid. I advised it would be hard to do my job with no tools i.e mobile and email. I left the office - An email had been sent to my co workers saying I had been dismissed Immediately for poor performance. No written reason has been sent to me. I am due commission payments at the end of the month and they said they are not sure if I am getting my payment now. I feel I have been treated very unfairly and I wonder if i have any rights to fight the dismissal as wrongful.
Customer: replied 1 year ago.
I know unfair dismissal claims can only be brought forward if worked 2 years and they also know this.
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. Did you have a contractually binding formal disciplinary procedure in place?
Customer: replied 1 year ago.
Yes Ben a procedure is in place in the staff hand book but was not followed
Customer: replied 1 year ago.
2. The Procedure:
(i) Oral warning
If conduct or performance is unsatisfactory, the employee will be given a formal oral warning,
which will be recorded. The warning will be disregarded after six months’ satisfactory service.
(ii) Written warning
If the offence is serious, if there is no improvement in standards, or if a further offence occurs,
the employee will be given a formal written warning. This will include the reason for the warning,
how he or she needs to improve their conduct or performance, the timescale over which the
improvement is to be achieved and that this is the second stage of the disciplinary process. The
written warning will be recorded but nullified after six months. If there is no satisfactory
improvement after six months, a final written warning will be given.
(iii) Final written warning
Failure to improve performance in response to the procedure so far, a repeat of misconduct for
which a warning has previously been issued, or a first instance of serious misconduct or serious
poor performance, will result in a final written warning being issued. This will set out the nature
of the misconduct or poor performance, how he or she needs to improve their conduct or
performance, the timescale over which the improvement is to be achieved and warn that dismissal
will probably result if the terms of the warning are not compiled with. This final written warning
will be recorded but nullified after twelve months, subject to satisfactory conduct and
performance.
(iv) Dismissal
(v) Failure to meet the requirements set out in the final written
Customer: replied 1 year ago.
Ben can you answer?
Expert:  Ben Jones replied 1 year ago.
As you have correctly identified you cannot claim for unfair dismissal because you do not meet the minimum service criteria. If you were to claim for wrongful dismissal, then you would have to show that the employer had acted in breach of contract. This would usually cover situations where they had not given you the contractual notice period you were entitled to or followed a contractually binding disciplinary/dismissal procedure. The latter applies to you so a potential claim does exist.
The issue is that a dismissal would not have been avoided even if the correct procedure was followed. They would have allowed you the chance to defend yourself and taken you through the required steps but they could have still dismissed you. So in a claim for wrongful dismissal in these circumstances your compensation would usually cover pay for the time you would have continued to be employed by them whilst they followed the correct procedure. In reality this would only be a week or two worth of extra pay.
This is your basic legal position. I have more detailed advice for you in terms of the steps you need to take next to make a formal claim if you wanted to, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46173
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Can you give me advice in terms of next steps to make a formal claim. Many thanks
Customer: replied 1 year ago.
Why are other Solicitors saying it is minimum 2 year criteria before I can claim?
Expert:  Ben Jones replied 1 year ago.
Thank you for the rating. The 2 year period only applies to unfair dismissal claims, which are different to wrongful dismissal claims. You cannot claim for unfair dismissal but can claim for wrongful dismissal. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits. In this case it is 3 months from date of dismissal to bring in a claim.
Customer: replied 1 year ago.
Thank You Ben. Is there a likelihood of success considering they did not follow their own procedures.
Expert:  Ben Jones replied 1 year ago.
Yes there is but remember that any compensation will be rather limited. You are only looking for damages incurred from them not following this procedure and as mentioned that would only really cover you for the time it would have taken for them to follow it
Customer: replied 1 year ago.
Yes, but they will also withhold by bonus I am relying on which I will not get if I leave in 2 weeks, where if I left following a proper procedure I would be entitled to as they would have to put a performance plan in place and give me time to achieve the results.
Customer: replied 1 year ago.
It says on the form if submitted means I am making a tribunal claim. Will this cost me alot of money and should I have a representative? I do not have money to pursue the employer.
Customer: replied 1 year ago.
Can you help me with the content/wording of writing an appeal letter please?
Expert:  Ben Jones replied 1 year ago.
You will not be paying to start the ball rolling and use the help of ACAS to negotiate - that is free. Only if this is unsuccessful would you then consider to make the claim in tribunal and then you will have to pay the tribunal fees. So you can think about it at the time. You do not need a representative though. In terms of an appeal letter, this would be classed as an additional service so if you need that done I can provide a quote
Customer: replied 1 year ago.
Yes Ben can you provide me with a quote for an apppeal letter please
Customer: replied 1 year ago.
It says on the ACAS form for people intending to bring the case to a tribunal!
Expert:  Ben Jones replied 1 year ago.
Yes it is for people intending to bring ina claim to tribunal but before they are allowed to make a claim they have to go through ACAS which is what you were filling out a form for. So first of all you go to ACAS for free, they try and negotiate with you and the employer and if that does ot work they will give you permission to proceed to a formal tribunal claim if you wanted to - you do not have to so could just drop matters there and pay nothing
Customer: replied 1 year ago.
I think I will write my own appeal letter
Expert:  Ben Jones replied 1 year ago.
ok no problem, if you want me to take a look at it once drafted then it will be cheaper as obviously it involves less time on my part

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