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Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Were you told that you were being dismissed in lieu of notice or were you expected to serve your notice period?
I was told that I would have to choose to take payment in lieu of notice (13 weeks notice period) or to do a 13 week notice period which I would not have to work. I asked for an explanation of this as neither of these options means anything to me - no explanation of the difference between these options has been forthcoming.
Have you been paid your sick pay since the notice of dismissal or has that run out?
I continued to receive sick pay at half-pay rate until 7th November when it ran out. As a result of receiving my pay slips some weeks after the event together with the effects of my illness I probably have not taken as much notice as I should of what has been going on. As my financial situation has now become more urgent I telephoned HR to clarify exactly what I had actually been paid - this is when I was informed that, as far as they were concerned, I was still employed.
What do you wish to achieve - just get the money you are owed?
Yes - I am not fit to work and cannot disagree with the decision to terminate my employment. However, I did not for one minute expect to have to fight to receive what I believe I am legally entitled to - or am I wrong?
Can I just check - how long have you worked there for?
and the 13 weeks notice is the one you are entitled to under contract?
Thanks. It is not necessarily good news unfortunately. When our employment is terminated you would general be entitled to receive your contractual notice period, which must be at least as long as the minimum statutory notice period you are entitled to. The statutory notice period is a week for every year of service, up to a maximum of 12 weeks. Your contract entitles you to more than the statutory as it gives you 13 weeks’ notice.
Had you been working as normal and received normal pay at the time of termination and been able to work through that notice period you would have been entitled to receive your usual pay for those 13 weeks. However as you are on sick leave what you receive will depend on your current entitlement and also your contractual notice period.
If an employee is not able to work throughout their notice period the employer would either have to pay them any sick pay entitlement they are due at the time (not applicable to you as you have run out) or their average earnings, or nothing at all. Section 87(4) of the Employment Rights Act 1996 states that an employer does not have to pay its employees full pay for their notice period if their contract entitles them to at least one week’s notice longer than the statutory minimum. This is the case here – your statutory notice period is 12 weeks, yet your contract entitles you to a week more than that at 13 weeks. This satisfies the requirements of this section which means that the employer is not obliged to pay you anything for your notice period as you are not capable of working and have also exhausted your sick pay entitlement. Had your contractual notice period been less than 13 weeks then you would have been entitled to receive your average weekly earnings for every week of the notice period.
You are still entitled to receive your accrued annual leave though so this can be pursued further if necessary. Assuming you have not been told that you are being terminated in lieu of notice, you have 3 months from the termination of your employment after the notice period expired (so 3 months after the 22 December) to make a claim in the employment tribunal to pursue that. Before you go down that route you should try and get the employer to pay you voluntarily, such as by writing to them and requesting payment within a specified time limit, failing which you will have to go down the tribunal route You could ask them for notice pay as well as you have nothing to lose by doing so but if they refuse to pay the notice then the law will operate as described above and you cannot claim for it but the employer may not know that and could still pay you.
Ok thanks - I am sure my line manager has no idea of the law. I am happy to let HR make the decisions - I just need them to be informed of the situation. Are you saying that my next course of action should be to threaten them with a tribunal? I am told by HR that they simply need to complete a short form which can then be emailed to them - what is their problem?
you do not necessarily have to threaten them right now but can do so if it appears that they are not moving this forward and you appear to be no closer to getting what you ma be due. So at first send them a letter asking for payments within a specified time limit reminding them that even if you had worked your notice period your employment would have terminated on 22 December and you should have been aid in the next pay run, which I assume would have been at the end of December. If they do not pay as requested then you can send a more formal letter, advising them that your next course of action would be to make a claim to pursue what you are due
you are welcome, hope this clarifies your position?
It gives me my next move - hopefully that will get a result.
yes I hope so too