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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46743
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been working for a company for just less than 2 years

Resolved Question:

I have been working for a company for just less than 2 years (I started after 6 April 2012) & had been signed off from work with stress for 2 weeks following a difficult year with my partner battling cancer through which time I have not taken any unauthorised time off. During this time my work & my capability has never been questioned. During my second week off sick I was asked to go in for a meeting to discuss my return to work. When I got there they instantly terminated my employment questioning my capability claiming they had found errors but when I asked what errors they would not give me details. At no time was a disciplinary procedure followed. Do I have grounds for unfair dismissal?
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 :

When were you dismissed?

Customer:

Today

Ben Jones :

Were you paid or given notice?

Customer:

They have advised they will pay a weeks notice

Ben Jones :

Is that what your contract entitles you to?

Customer:

Yes although if I left I had to give one month's notice

Ben Jones :

Is there a contractual disciplinary/performance procedure they should have followed?

Customer:

Yes

Ben Jones :

ok let me get my response ready please

Ben Jones :

As you appear to be aware, 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. This means that your employer can dismiss you 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.).


 


Whilst your partner’s illness will amount to a disability, you can only claim discrimination if the dismissal was because of it, for example because the employer decided to dismiss because they did not like the fact he had a disability, which may be unlikely.


 


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.


 


The only other potential claim is for the failure to follow the specific dismissal procedure, which can amount to wrongful dismissal. However, in that instance all you can claim for is the extra time you would have been at work had they followed the procedure, which is unlikely to be that long.


 

Customer:

Surely if my capability is in question they would have to give a reasonable time to improve my performance?

Ben Jones :

they do not actually because of the lack of protection against unfair dismissal - failure to give you time to improve would potentially make a dismissal unfair, but only if you had protection against it, which unfortunately you do not

Customer:

Hence why they never keep employees longer than 2 years!!!

Ben Jones :

that may indeed be the case, it unfortunately not unlawful though

Customer:

What about stress I was always informed that this is a grey area & they have to be very careful as there actions can enhance the stress

Ben Jones :

well with stress it is a health and safety issue but apart from constructive dismissal (which you cannot make either) it is a personal injury claim you can make, assuming you can show you had suffered a serious psychiatric illness as a result

Customer:

So basically contracts aren't worth the paper they are printed on unless you have been there 2 years!!!

Ben Jones :

No, you will have contractual rights that do not depend on service, such as pay, holidays, notice, other benefits, also you get statutory benefits like sick pay, and you have the protection against discrimination, it is just that the protection against unfair dismissal does not kick in yet

Customer:

So if I do not receive the correct pay what would I do then?

Ben Jones :

that is a potential unlawful deduction of wages or breach of contract claim, it can be made either in the employment tribunal or county court respectively

Customer:

Ok so I will have to wait to find out my final pay......what about if a new employer requires a reference would they be able to say I had been dismissed for incapability if this ha not been proved?

Ben Jones :

they can potentially say that but that is when it becomes more difficult because if challenged they will need to justify it as they are required to provide an accurate reference

Customer:

So if they do that & that costs me a new job how would I stand? Sorry for the extra questions but this company is renowned for giving bad references

Ben Jones :

no problem. In that case it is a potential negligence claim against them, this is undertaken in the county court and you can seek damages for any losses incurred as a result

Customer:

Ok thanks for that. Thank you for your help just wish I had started 4 weeks earlier then I would have had grounds

Ben Jones :

I know, sometimes it is a matter of just a few days...hopefully you will have no further issues with them after ou leave

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46743
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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