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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48739
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Regarding TUPE and a member of staff that was tuped across

Customer Question

Regarding TUPE and a member of staff that was tupe'd across on 1st November 2013. Am I right in assuming I can give her a weeks notice. She was only employed by previous service supplier on 3rd June 2013.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Does she have a contract?

Customer:

No I am in process of preparing one. I asked for full terms and conditioned from old company and/or contract and she has stated that none was issued.

Customer:

basically she has nothing from the old service provider and I had nothing from them either

Ben Jones :

if no contract exists then she is only entitled to a week's notice and also any accrued holidays, including those accrued from previous employment. She is not protected against unfair dismissal so you can dismiss her even if it was due to her TUPE transfer

Customer:

ok thats good. Am I right in assuming that she has to have worked 2 years before entitelment

Customer:

to claim for unfair dismissal

Ben Jones :

yes that is correct

Customer:

brilliant, thank you

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



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Ben Jones :

sorry should work now

Ben Jones and other Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi


 


I followed advice given and provided a weeks written notice. She came back and said I am in breech of my obligations as an employer. She wishes to appeal the decision. I have asked for this in writing outlining the reasons which she said she would email. This so far has not happened..


 


One thing I forgot to mention (and genuinely) was she had told me that she was pregnant. She has insinuated that this is why I have given her notice. I can assure you this has no bearing on the decision. More poor quality of work and the general hassle factor that has been present since she started. She used foul language on tuesday which I have in a text and was not reciprocated in anyway. Does she have the right to appeal the decision? If so what is my next course of action? If I re instate her it basically gives her carte blanch to do as she wishes… I need some more help


 

Customer: replied 3 years ago.

To add re the pregnancy she is not yet 20 weeks (my partner is in same boat) and she does not earn enough to qualify for any maternity pay from us. Her earnings are £97.50 per week

Expert:  Ben Jones replied 3 years ago.
Hello, she has the right to appeal so if she does so then give her the chance. Whilst the pregnancy is an important issue, it does not mean you have to keep her because of it. You must not discriminate against her because of her pregnancy, meaning that your decision to dismiss her should have nothing to do with the fact she is pregnant. If you are able to justify that the dismissal was for some other fair reason, like misconduct, poor performance, etc and that it is in no way linked to her pregnancy then you may still dismiss her legally as discussed previously.
Customer: replied 3 years ago.

Thanks for your reply. Poor performance is my main issue. Also the hassle she keeps spouting about. I genuinely didn't and do not consider her pregnancy an issue to us.


She says she has a right to know why she has been dismissed. Is this correct. My understanding was that due to the fact that she has only been employed a short while I did not have to provide her with a reason. Is this wrong?


 

Expert:  Ben Jones replied 3 years ago.
You do not have to provide her with a reason but in the circumstances I strongly recommend that you do. You are in a position now where you need to justify that the dismissal was not connected to the pregnancy. If you refuse to give the real reasons or are being vague about it then you cannot blame her for thinking that her pregnancy may have had something to do with it. So provide her with details of what the reasons were to show that it had nothing to do with the pregnancy.
Customer: replied 3 years ago.

OK I am happy to do that. I should then be covered, yes? and can carry on with my decision to dismiss her?


 

Expert:  Ben Jones replied 3 years ago.
yes you should be but if she challenges this and makes a claim in the employment tribunal it would be for you to prove that the dismissal was for reasons not connected with the pregnancy s if you have any evidence now that can back this up it is best to keep it in case it is needed
Customer: replied 3 years ago.

Thats great, I will get a letter from the client to state their unhappiness.

Expert:  Ben Jones replied 3 years ago.
ok great, best of luck
Customer: replied 3 years ago.

Thanks ben


 

Expert:  Ben Jones replied 3 years ago.
Sorry just need to post any message as otherwise the system things you are still waiting for a response, no need to reply thanks
Customer: replied 3 years ago.

Hi Ben


 


I have done everything as requested detailing out the reasons for termination. I have even taken photos for evidence of all of this.


She has come back with a written appeal against her dismissal which is rather long winded. Mentions her pregnancy and she now informs me that she is registered disabled (something neither she or previous contractor disclosed) She says that the appeal must be heard by someone impartial and that a meeting must then take place. Now as I understood it form your responses I a) didn't have to supply reasons for her termination and therefore b) do not have to hear her appeal or have the meeting. Is that correct?


 

Customer: replied 3 years ago.

Just need to know how to proceed before I respond. Happy to type out the full reply if you need me to


 

Expert:  Ben Jones replied 3 years ago.
You do not have to hold an appeal or provide reasons for dismissal but it would be in your best interests to do so in order to show that your decision had nothing to do with pregnancy/disability
Customer: replied 3 years ago.
I supplied detailed reasons and I have left te evidence in place with agreement from the client until this is resolved. I also have a letter from the client outlining that they are unhappy. I am happy to meet with her to show her why she has been dismissed. Her last working day was Monday 6th and I received her letter on Wednesday 8th! She has also requested her final pay which we will process today.
I just needed to double check that although she has appealed she doesn't technically have the right to do so due to length of continuous employment. Is this still correct?
As I said I am happy to meet her to show that we are clear and without prejudice
Expert:  Ben Jones replied 3 years ago.
the only legal right to appeal is under the ACAS Code. Failure to follow it can allow her to seek an increase in compensation by up to 25% but only if she has another valid complaint about unfair dismissal and due to her length of service she cannot make that claim and as such cannot ask for the increase in compensation for failure to follow the Code and allow her to appeal
Customer: replied 3 years ago.
Do I need to read the ACAS code? I have followed your advice and provided her with clear written reasons for her termination. There is no prejudice against her pregnancy and there cannot be against her disability as I had no prior knowledge of it. So to clarify I have 1. Provided clear reasons that can be proven for her dismissal. 2. I have a letter from the client substantiating the above. 3. If I allow her the meeting, go over my reasons and show her the evidence of poor performance that has been left in place then I should be ok?
Expert:  Ben Jones replied 3 years ago.
The ACAS Code is not really relevant here as she cannot claim under it. So yes that should be sufficient as you have listed above but it would not stop her from claiming if she wanted to
Customer: replied 3 years ago.
So under what basis could she claim and surely she would not have a case?
Expert:  Ben Jones replied 3 years ago.
discrimination, but it would still be up to you to show that this was not the case - she makes the claim, you have to defend it and show the dismissal was not based on discriminatory grounds
Customer: replied 3 years ago.
Ok that's fine. I have no issues with that as my conscience is clear. Glad I took photos now.. I shall offer her the meeting and follow it up with a letter to summarize that meeting to show I have given her very opportunity over and above the bare minimum she is entitled to.
Thanks for your help
Expert:  Ben Jones replied 3 years ago.
You are welcome, all the best