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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Hello. Is it legal to advertise a job when youve not been

Customer Question

Hello. Is it legal to advertise a job when you've not been told that you have not passed your 3 month probation? And if they keep you on past your probation as they haven't found anyone yet, do you have legal rights?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know what does yourncontractbsay about probation, whether it can be extended etc?
Customer: replied 3 years ago.

It doesn't state anything about extension. I got called into the office and said iw asn't right for the job and that they are looking for someone else, but if they dont like the people they interview, they are keeping me on untuil they do. they said they want someone bilingual, yet it was not in the terms and conditions that I was bilingual, and I spend my own time attending the company's french classes. Basically, the director doesn't like me and is finding an excuse and I want to challenge him. I have not been told of anything I am doing wrong, nor have they complained about my work.

Expert:  Ben Jones replied 3 years ago.
What about notice periods?
Customer: replied 3 years ago.

A week either way

Expert:  Ben Jones replied 3 years ago.
Unfortunately this will be possible in this particular case. If you have been continuously employed at your place of work for less than 2 years then your employment rights will be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, 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.

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. 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.

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.

But they can advertise your position even if you are still employed there because when you are eventually dismissed you will not be able to challenge it anyway, apart from the notice period as mentioned above.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44964
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 3 years ago.


So on the basis of them failing my probation on discriminatory grounds, here is an email sent from my boss:


 


Jo

As yet , i have not found a replacement. I will let you know when we do.
I know you have commitments and it wasn't easy telling you that it was not working out.
Adrian doesn't have a problem with you and thinks you are hard working as i do but he EMR would like someone who is older on reception as well as being bi lingual.he also thinks that the conversation gets abit girly and having someone older and being aware of what is going on would be better.

Gill


 


Surely this would then be classed as discriminatory?

Expert:  Ben Jones replied 3 years ago.
If they did not think that you were suitable because you were too young for them then it can indeed be discriminatory unless they can objectively justify this. I do not see how they could though, although they have the right to try. The bi-lingual requirement can be justified if it is a requirement for the job, for example if they often have foreign speakers contacting them and they need someone to deal with them by speaking their language.
Customer: replied 3 years ago.

I don't see how they could, due to my other collegue being the same age as me. What steps would you advice me to take next? DO i mention it to them now? I obviously have the email as proof, but if i say something now they could come up with other reasons, or does that not matter due to me having that email as evidence?

Customer: replied 3 years ago.
Relist: Other.
I need to know asap as I need to speak to my boss at the earliest opportunity!
Customer: replied 3 years ago.

 


I don't see how they could, due to my other collegue being the same age as me. What steps would you advice me to take next? DO i mention it to them now? I obviously have the email as proof, but if i say something now they could come up with other reasons, or does that not matter due to me having that email as evidence?


Expert:  Ben Jones replied 3 years ago.
Hi sorry I was offline earlier today. Now that your employment has been confirmed as terminating you have the following options:
• Raise a formal grievance with the employer and follow this up internally
• If the grievance does not help and your employment is still terminated then all you can do is consider making a discrimination claim in the employment tribunal within 3 months

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