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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44919
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have recently been put on 1 week's gardening leave and told

Customer Question

I have recently been put on 1 week's gardening leave and told to leave my employment. After an initial period of getting over the shock I now wonder if I should be claiming against the dismissal. I am wondering if the organisation have followed proper process - can you advise me please? Here are the facts as I see them:
I started working for the organisation in July 2015 and was attending my six month probationary meeting. The period of employment included two months illness (operation) - but the organisation were very supportive during this absence.
I was placed and paid one week's gardening leave - but a specimen contract of employment gives one month's notice of termination of employment between employer and employee.
My profession is finance and the reasons given against my further employment were not made absolutely clear - several relatively minor issues were raised against me which were not material when placed alongside the overall job role (eg. document design, financial transactions (corrected). It was also suggested that our External Auditors were going to qualify the accounts and this was why I had to leave. This must have been incorrect as the EA had not completed their accounts work - and were not in a position to make a decision on the state of the accounts. It therefore seems obvious that the Management were looking for reasons to get rid of me.
My Supervisor stated after the meeting that "She had resigned - but this was not accepted" and "If she had not left - he (the Senior Manager) would have got you within two or three months".
My leaving follows two other members of the organisation leaving very suddenly in recent months.
Having researched the topic - I'm wondering if I have grounds for constructive dismissal. Would it be better for me to speak directly to an employment law expert?
Submitted: 7 months ago.
Category: Employment Law
Expert:  Remus2004 replied 7 months ago.
How can I help with this please?
Customer: replied 7 months ago.
Whilst I realise I cannot claim unfair dismissal because I do not meet the 2 year employment criteria - I wonder if I could pursue a claim whereby the organisation have not followed due process. For example, there is nothing in writing from either me or the employer in terms of the termination of employment. I have a speciman Contract of Employment which states that one month's notice should be provided for termination of employment. I feel I was forced to leave for reasons that do not justify the action. There is also the comments passed onto me by my supervisor (the organisation Head of Finance). I wonder if there was another reason for her initial resignation - but I have been made the scapegoat?
Overall, do you think I would be able to compile a case - given the relatively short period of my employment with this organisation?
Expert:  Ben Jones replied 7 months ago.
Hello, if you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal or constructive dismissal. This means that your employer can dismiss you or force you to leave for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). In the event that the reason for dismissal fell within these categories, then the dismissal will either be automatically unfair, or there will be a potential discrimination claim, however I see no evidence of that here.If the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period, because unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period. If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. Your employer would either have to allow you to work that notice period and pay you as normal, or they will have to pay you in lieu of notice. A specimen contract is no good, it has to be the contract you were working under so if it is just a generic contract for that employer you cannot rely on it. If you were not paid your notice period when you were due one, that would amount to wrongful dismissal (which is different to unfair dismissal) and you could make a claim in an employment tribunal to recover the pay for the notice period that you should have been given. There is a 3-month time limit from the date of dismissal to submit the claim.This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow if you wish to pursue any unpaid part of the notice period due, 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, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Expert:  Ben Jones replied 7 months ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

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