How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ben Jones Your Own Question

Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46772
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
29905560
Type Your Law Question Here...
Ben Jones is online now

My sister is due to complete a 6 month probationary period

Resolved Question:

My sister is due to complete a 6 month probationary period as an administrator at an elderly nursing home in a little over a week. She had been warned by previous managers that the senior management would be likely to try to terminate her contract by any means necessary despite the fact she is meeting all her objectives.
Last Friday she took a day's annual leave. She was asked to travel to work to drop in a key to the safe, which she duly did. When she returned to work on Monday she was informed that the petty cash was short some £200. There was no specific allegation but the threat of a disciplinary hearing was mooted. I advised her to insist the police are contacted as a criminal offense had been committed.
She attended as usual today, and again asked for the police to be contacted. At this point the senior management tended to play down the incident. When she was being questioned previously she alluded to another practice she'd been asked to undertake, that of writing a company cheque to her own account and then paying the cash to the appropriate fund. Although she found this unusual - and I was surprised to hear of it myself - she kept a paper trail of the transaction and can demonstrate that the practice was documented and the funds all arrived to the correct destination.
Now, however, it seems she has been summoned by email to a hearing tomorrow morning at 9pm. The email arrived a little after 4.15pm tonight. She is allowed to invite a union representative (of which she is not a member) or a fellow employee. It's not enough notice to arrange this. The hearing alleges that she has not followed Company Practice by writing these cheques but she maintains her then manager (who has subsequently left) had asked her to do so. The subsequent manager has also left. This appears to be the mode of removing her from her employment that they have settled on, having first rather hamfistedly alleged some misappropriation of funds but subsequently appearing to abandon that course at the mention of involving the police.
The home has a very high turnover of management and therefore has been unable to provide any continuity or oversight. She has witnessed first-hand the same senior manager requesting the hearing writing a company cheque in the name of another authorised signatory. I believe this has contributed to an ethos of rather lacklustre and get-it-done approach to financial matters.
I'm aware as she has been there a little under 6 months she is not afforded the regular rights of an employee of a year or more, and also that a "probationary period" is not a legally defined term but a contractual one, and that she might therefore follow an unfair dismissal claim if it comes to that (as it seems). She is certainly not the first employee to be dismissed under dubious guise just before reaching the end of the contractually agreed probation period.
She insists she has received minimal training and none whatsoever with regard to "Company Practices". She has not received an Employee Handbook or been pointed to specific practices. Many of her duties are not explicitly defined, she just has to make it work on the day, no matter the circumstance. She has often worked long hours with no overtime pay.
Is there any advice or precedent to how she should conduct herself at the interview? Is there any observation about the short notice and the impossibility of inviting someone in her defence to attend? Is the company culture of lax procedure and the failure to communicate a documented process a viable defence?
I should also reiterate that her innocence is beyond doubt, and she has no convictions or CCJs or even allegations against her in the past.
Thanks and regards
Simon Hunt.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. You mentioned she is considering pursuing an unfair dismissal claim - on what grounds would that be taking into consideration she is not actually provided with unfair dismissal protection?

Customer:

So I'm not fully versed on the protection to which she is entitled. Her contract mentions a 6 month contract, "probationary period". She had been alerted to the fact management would seek to fabricate reasons not to pass the probationary period but of course that is speculation.

Customer:

She attended the hearing today but it was aborted due to "smelling alcohol on her breath". This was a fabrication. She immediately took a test from a local pharmacy and passed and volunteered to retake in front of her employer but was declined as the matter was closed. Surely there must be some protection against this salacious and damaging practice?

Ben Jones :

If she has been continuously employed at her place of work for less than 2 years then her employment rights will unfortunately be somewhat limited. Most importantly, she will not be protected against unfair dismissal. This means that her employer can dismiss her 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 she was trying to assert any of her statutory rights (e.g. requesting maternity leave, etc.).

If the dismissal had nothing to do with any of the above exceptions then she would not be able to challenge it and her only protection would be if she was not paid her contractual notice period, because unless she was dismissed for gross misconduct, she would be entitled to receive her contractual notice period. If she did not have a written contract in place she would be entitled to the minimum statutory notice period of 1 week. Her employer would either have to allow her to work that notice period and pay her as normal, or they will have to pay her in lieu of notice.

If she was not paid her notice period when she was due one, that would amount to wrongful dismissal (which is different to unfair dismissal) and she could make a claim in an employment tribunal to recover the pay for the notice period that she should have been given. There is a 3-month time limit from the date of dismissal to submit the claim.

So I am afraid that I do not see anything which can give her the right to claim for unfair dismissal in the circumstances. The employer can safely dismiss simply by giving her the required period of notice. They do not have to follow a fair procedure, the issues with the short notice cannot be legally challenged and neither can the reasons for the dismissal. What they said at the meeting is morally wrong, assuming they had no valid reasons to say that, but as long as it was not something they started spreading as a rumour then it ia also not something she can challenge

Customer:

I think I have confused the terms and it seems she is being engineered toward a summary dismissal with less than 2 weeks remaining of her contract. At this point she is resigned to the fact that her employment there has reached an end, but the concern is that the employer will now refuse to give a reference on the basis they can claim a complaint was made and upheld against her. The way this circumstance has been engineered is distasteful in the extreme, but is there no way to protect against the damage to her reputation?

Customer:

I understand about unfair and wrongful dismissal now - thank you; I had confused my terminology.

Ben Jones :

The issue is that the employer is not legally obliged to provide a reference anyway so if they did not want to issue one they are not in any way obliged to

Customer:

Ok - thanks for your help - I see that they are free to repeat the same behaviour with the next victim, as we were warned by the previous one, and the one before that. It's a shame that honest worker's reputations are being sullied in this way and there is no protection whatsoever; this feels positively Dickensian. But thanks for providing the information.
Merry Xmas

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46772
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 2 other Law Specialists are ready to help you

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Previous | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice