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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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Ive been working for my employer for 18 months. Last week

Customer Question

I've been working for my employer for 18 months. Last week he dismissed me whilst I was off on a 2 week sick leave with an ankle injury, and gave me no good reason for his decision. Firstly, is this allowed?

Secondly, I have been told that I cant work in my industry for up to 6 months in the city I live in due to confidentiality. He has also told me that if I work in the next town then the employer cant be a multi-branch company also working in my town nor have any clients in my own town. I'm only a letting agent so it seems very far fetched and an agent employing that fits in this description is just impossible to find. The result of this is that I'm going to have to either travel much further afield to continue my line of work or start from scratch in an industry I know nothing about. Either way, both have financial implications from me.

Thirdly, my employer has also advised that he will only pay me commission I earned from the previous month up to 90 days after I start my new job and it wont have tax or NI deductions, and wont delay my P45 being released. The payment is subject to him being satisfied with my placement and also not talking to a particular ex-employee any more. I haven't been dismissed for gross misconduct or anything similar - I don't see how this is enforceable when I don't deserve to have money I earned in line with my employment contract deducted and paid at his discretion.

Lastly, he's asked me to work out 6 weeks notice - can this be enforced if someone has been replaced in my role already?

Thanks
Submitted: 3 years ago.
Category: Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hello, thanks for your question. My name isXXXXX can help you with this.

tdlawyer :

Has the employer forced you to remain away from work?

tdlawyer :

Do you know whether that right exists in the agreement?

Customer:

no, he has asked me to come in for the next 6 weeks. There is no mention of notice periods at all in my contract

tdlawyer :

Okay. Are you asking me aboout the enforceability of the 6 month covenant?

Customer:

yes, that as well as whether he is allowed to dismiss me whilst I'm off on certificated sick leave

tdlawyer :

Okay. Well, because you've not been there for 2 years, you have no protection for unfair dismissal. Not unless your ankle injury was likely to result in 12 months or more of diability?

Customer:

no it wasn't. Okay, thats not ideal. What about the restrictions in where I can work next?

tdlawyer :

That's the more tricky part. Generally, this type of claim is unenforceable, although if the employer can demonstrate that it is reasonably necessary to protect his business, then the court can enforce it. However, the Court will only enforce a clause like this that is not too long, or too wide in its application, to ensure that reasonable protection.

tdlawyer :

Given what you do, in lettings, I doubt that this type of clause is enforceable, but it depends what threat you potentially represent to the employer's business once you leave.

tdlawyer :

Have a look at this link, it gives a detailed view of the law on restrictive covenants: http://www.lindermyers.co.uk/are-restrictive-covenants-enforceable_751.html

tdlawyer :

You can work through that and ask yourself the questions they pose, to see whether a court is likely to enforce the covenant.

Customer:

Thanks I'll have a read. I'd imagine I'd pose a relatively small threat. I obviously know their current clients but surely any service based job would land an employer with concern. It goes with the job

Customer:

What do you think about the circumstances about him paying me the bonus I've earned in January?

tdlawyer :

If the bonus is due under your agreement, then it still has to be paid. But you need to show that you're entitled to the money under your employment agreement.

Customer:

My contract says that bonus wont be paid during the notice period. I would take that to mean I wont earn any more during the notice period, not that money I've already earned wont be paid

tdlawyer :

I think that is right - if the contract says you're not entitled to a bonus if working your notice period then you don't have to be paid it.

Customer:

so you don't think he will necessarily pay me what I have earned?

tdlawyer :

He might try and wriggle out of it. It depends what the contract says, but I imagine that he will try and avoid the bonus.

tdlawyer :

How much is the bonus?

Customer:

around £1200, and as I only received SSP for a few weeks it will be needed!

tdlawyer :

Okay. You might wish to consider brining a small claim if he doesn't pay, because there is no real risk to you of being ordered to pay costs if you lose the claim, and that way, a court will see the contract and adjudicate on it.

Customer:

Okay, how much do these claims cost and will i need to attend a hearing? or is it done remotely?

tdlawyer :

You need to attend a final hearing (if it gets that far), but it's usually at your local court. The cost to issue the claim is something in the region of £30-£40 or so, and you can do it online at www.moneyclaim.gov.uk

tdlawyer :

They will then allocate to your local court once all the papers etc. have been served.

Customer:

right okay - scary stuff. What about the last question, can my employer hold me to 6 week notice? He's already replaced me

tdlawyer :

This depends what you agreed in your contract. If nothing is said about notice periods, then you have to give one weeks' notice if you want to leave early. However, the only real remedy of worth to an employer is to seek an injunction (which could cost him £10,000 or so), and in reality, nobody every bothers doing so. At worst, it might affect your reference, as he might say you walked out on him without notice, which would potentially be true. Therefore, if you want to go earlier, subject to a longer period being stated in the contract, you can give one weeks notice.

Customer:

okay, my contract states 'rolling 3 month notice for both employer and employee to terminate the contract' later I signed an addendum which states ' it has been discussed and agreed that the notice required to terminate employment be reduced from 3 months to 6 weeks'

Customer:

so can i still give him 1 weeks notice, or am i held to the 6 weeks.

tdlawyer :

If you've agreed 6 weeks notice then you're stuck at that. However, if you approach the employer, and ask the question, I expect he might be willing to let you go now, especially if you have been replaced anyway.

Customer:

Okay, thats true. My last question is related to how he is going to pay me that bonus (if he does). He wont include it in my P45 and wont deduct tax or NI - is this allowed? and also, can he bring in restrictions like who I talk to out of work into the agreement?

tdlawyer :

He should be paying through payroll and deducting tax.

tdlawyer :

And he can bring in additional restrictions if he pays you the bonus when he doesn't have to ... as he will be giving you something more that you're legally entitled to.

tdlawyer :

If he is obliged to pay it anyway, then he cannot ask for anything more as a condition to paying it to you.

tdlawyer :

I wouldn't worry too much about the tax position for the moment, you cal always declare the money as received to HMRC later and then pay what you owe. You can mention his failure to HMRC later.

tdlawyer :

The real issue is what he is asking for now as a condition to make the payment to you and whether he is allowed to do this.

tdlawyer :

It might be worth taking the contract to a solicitor and ask them to have a quick look for you. Most firms do 30 minutes free advice for things like this, and this is probably all you would need to get an answer on something like this.

Customer:

yes okay, thats probably best.

Customer:

So to summarise from the limited information you know, you know I cant have been dismissed unfairly, there is a small chance the restrictive covenant can be enforced, I may not get the bonus but could win in a small claims court, he can put restrictions on the condition of payment as the contract is ambiguous, and he can hold me to the 6 weeks notice.


Customer:

Its frustrating that I have no legal rights in all of this

tdlawyer :

Yes, that's a decent summary.

tdlawyer :

It used to be 1 year for unfair dismissal, which would have put you in a better position, but then the world fell apart with the economic crisis, and so to encourage more employment, the government raised it to 2 years unfortunately.

Customer:

Its seems like too long a time. 18 months in employment has enabled me to establish enough financial responsibilities based on the job, learn a substantial amount about the industry and be relatively comfortable in employment! i know so many people who have been stung with the same.

Customer:

if it went to court, is there any discretion used by the judge, or is it black and white not unfair dismissal?

tdlawyer :

Black and white - not unfair dismissal.

tdlawyer :

It is a long time, and hence why it got reduced at one point to 12 months.

Customer:

that's not ideal, well thanks for your help - I think you've answered all of my questions!

tdlawyer :

Okay, thank you for your time this morning!

tdlawyer :

Have a great Sunday.

Customer:

You too, you've been great

Rebecca

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