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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been working at my work place year's and I have a

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I have been working at my work place for 7 year's and I have a clean record till now. On the 21st of June I heard a conversation between my manger and room leader on the phone (I didn't pick the phone up another member of staff did and gave it to me and I listened to the conversation) talking and bad mouthing me and some of the other staff saying how they will get rid of me and how people don't like me etc and that the head teacher hates me and that the headteacher has already been informed HR about me (informed about what I don't know) so after I heard the call I was upset and I discussed it with other staff *I know I shouldn't have) I asked them to be my witness's but they refused so I said I won't involve them and will deal with it alone. The next day I didn't go work and had a sick note from the doctor for stress as I was genuinely upset and stressed (am also 3 months pregnant but my work doesn't know) while I was on sick note I rang the head teacher of the school and made a appointment with her to discuss my concerns and reason I was stressed. She agreed to see me the following Monday. On Monday I got to her office and she ignored me as she went past then she called me in to her office and her p.a was there to take notes as I sat down I gave her the piece of paper with what I heard on the phone call and I said I have been stressed due to this. She read it and then said you are in trouble as 3 staff have handed their notice in and it's because of you as you must have told them about the phone call. But staff told me they handed their notice in saying they not happy there as they are not treated fairly and are bullied. She then said I have already spoke to hr about you and am not happy with you. As I tried to speak she shouted at me to which I got up and said I am not having this meeting with you if you are going to shout at me and not listen to me I got up and got the paper from infront of her as I walked away towards the door she rushed after me and snatched the paper from my hand and it ripped in half so she had half and I had half. She then grabbed my arm and tried to close the door a I couldn't get out but I managed to and she followed behind still trying to snatch the other piece of paper out of my hand. She then asked me for the paper and I refused leaving the building upset and broken. I told my union about everything the following day and my doctor also is aware of everything. My union however told me to get a further sick note till the 22nd of July as I break up for summer holidays and she said we will see if the headteacher gets in touch first and deal with it in September. I took her advice but I heard nothing from the headteacher but I was so stressed I was not eating or sleeping and it was taking so much toll on my life at home and health that I decided to go and get a fit note from my doctor so I can go back to work and deal with the situation as I couldn't cope any longer. I rang work and told them I am coming back Tuesday and I was told I am not allowed to come back I asked the reason and I was told because they wanted to have a meeting with me first when I asked what the meeting was about they said it was a back to work interview. The meeting was the next day Wednesday so I rang my uninion and told her she rang the head teacher who then told her that there is a number of complaints against me and that I grabbed the paper from her hand and that I have sent staff messages telling them to lie about the phone call that I heard (which they have as evidence). So the staff showed the messages I sent to them and told the headteacher about out the call. (I don't know whether they know that I picked the phone up when I shouldn't have or whether they just know that I heard the conversation between my manager and room leader and I don't know what else the other staff may have said) after telling me this my union said that they have offered me my years salary to terminate my contract and if I want to except the offer or I I can attend a meeting Friday with them That night I messaged the staff as I was upset and said to them why they showed and told the headteacher about the phone call and other things. Next morning my union rep phoned me and said that the head teacher has said you messaged staff again last nite and they want to know whether I excepted the offer? I said yes I accept the offer but now it's been a week and still I have not been sent any paper work through the post. I am regretting accepting the offer and feel like I been pushed into it and my union has not been any help at all or helped me to do things the correct way. I want to know if I can refuse the offer and if I do go through with the disciplinary procedure will I get dismissed and if I do get dismissed can I take then take it further to court for unfair dismissal? Or should I take the offer even though I will find it difficult to find another job again. I am very stressed. I feel I have done nothing g wrong and gave them 7 year's service with nothing g bad being sad about me and I feel am being punished for whistleblowing and harassed. I just need to know if my job is safe if I decide to fight my case.
Submitted: 5 months ago.
Category: Law
Customer: replied 5 months ago.
I work for sandwell council and as a nursery assistant.
Expert:  Ben Jones replied 5 months ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 5 months ago.

Based on what you have described, please can you tell me what the ideal outcome would be for you in this situation, so that I can look at your options. Thank you.

Customer: replied 5 months ago.
I really am not sure but my union has advised me to accept the offer as I could get dismissed. I want to keep my job as as I have 2 young children and a family to support and would prefer to resign not have my contract terminated
Expert:  Ben Jones replied 5 months ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Customer: replied 5 months ago.
Are they not meant to give time before terminating my contract as they offered me on Tuesday and then they asked me on Wednesday if o accepted the offer. Also my termination was meant to start from July 21st yet I am meant to break up today for summer holidays as I work term time only so I would be back in September.
Customer: replied 5 months ago.
Sorry I meant 22nd of July which is today.
Expert:  Ben Jones replied 5 months ago.

OK thank you and no problem at all.

Customer: replied 5 months ago.
Hi Ben I would be grateful if you could give me reply soon as I did state I need to know urgently. Thank you
Expert:  Ben Jones replied 5 months ago.

Hi there, thanks for your patience. If an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.

According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.

If they simply go ahead with terminating your employment by not following a fair procedure and giving you notice, then the likelihood is that this would amount to an unfair dismissal, which you can challenge. Whilst there is nothing to prevent them from terminating your employment, you can certainly challenge the reasons and overall fairness.

You may have accepted an offer to terminate your employment but that would need to go through a settlement agreement, where you are required to take formal legal advice before you sign it and until then it would not be legally binding anyway. So if you want to reject the offer, you may do so. That puts the ball back in the employer’s court and it would be for them to decide how to proceed with this. As mentioned, they could just decide to terminate your employment anyway but they would be required to show there was a fair reason and follow a fair procedure too and in the absence of either, the dismissal can be challenged as an unfair one.

This is your basic legal position. I have more detailed advice for you in terms of the rights you have should they try and dismiss you anyway, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Customer: replied 5 months ago.
Can I refuse the offer and resign or they can still dismiss me. Also I believe that they do not have enough evidence to dismiss me as if they had they would have had the meeting with me and dismissed me rather then offer to terminate my Contract with a settlement. Also as far as am aware the three staff who have handed their notices in are leaving this week. Will that work in my favour if they have left for the reasons that the was treated unfairly and bullied?
Expert:  Ben Jones replied 5 months ago.

you can resign if you wanted to, you can rely on constructive dismissal to leave with immediate effect and potentially pursue a claim against them for being forced out. However, if you are likely to be dismissed anyway then I would let that happen and pursue an unfair dismissal claim instead. This is generally considered an 'easier' claim because it is for the employer to prove there was a fair dismissal, whereas in constructive dismissal you have to prove that there were the required elements for you to resign and claim. If the staff have left for these reasons and they are able to act as a witness for you, then that can indeed help your position.

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45303
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 5 months ago.
I really think my union rep has not advised me correctly and took the correct steps. And she has just said take the the offer and nit discussed any t other options with me as I was so stressed and being pregnant I just accepted the offer in haste and the fact that my union rep told me if i dont accept it they will just dismias me alarming me even more.yet I am still unhappy and depressed and I don't know what my beat options are. I feel as though my union rep has chose what's easier for her rather then me. Surley my 7 year's if service and nothing on my record should count for something and I should be warned first rather then being dismissed.
Customer: replied 5 months ago.
Am just scared that they may say I listened to a private conversation between the staff and then discussed it with staff and told them to say things to change what actually happened and they are dismissing me for breaching confidentiality. Can they do that??? Also the headteacher is saying I snatched the paper from her hand but as I already explained she snatched it from my hand and grabbed my arm for that I have no witnesses and she has her P.A who might take her side and say I did snatch the paper.
Customer: replied 5 months ago.
Also if I do refuse the offer and they do dismiss me. Will I still get my maternity pay if I continue down the route of unfair dismissal??? And how long can the case take if I go ahead by challenging them with unfair dismissal?
Expert:  Ben Jones replied 5 months ago.

your record and service will indeed count when considering the fairness of any dismissal as that needs to be taken into account when the reasonableness of any decision is considered. Also as mentioned the offer will not really be binding until you have taken legal advice and signed the settlement agreement with the employer. If they still dismiss based on that offer you will be able to claim unfair dismissal. Listening to a private conversation would only be an issue if you had deliberately set out to do so and had for example bugged them or done something unlawful to listen in, not just accidentally coming across it. Snatching the paper is not going to be a serious enough issue to dismiss you for. You will still get maternity pay even if dismissed - that is not affected by it and even if you no longer work for them you still get SMP. Any tribunal claim will likely take a few months.

Customer: replied 5 months ago.
There is other things aswell. I had a eye operation in September last year and I was on sick note due to the healing g process so I was not fit to come to work. However they phoned me and told me if I could come in on Friday as ofsted are coming to the setting on Friday. I agreed to go In as I knew if I refused they would be off with me. Am sure by law they not meant to ask me to come to work if I ahead been written unfit for work by doctor. And the manager has her partner on the premises occasionally and he comes into the room were the children are but staff have said that he is not crb checked and the headteacher is aware of this also. The manager is meant to be doing a 7 and half hour shift a day but she turns up for two hours a week and gets the other staff such as room leader and deputy to lie for her and say when the headteacher or anyone rings from school asking for her to say she is in even though all of the staff are aware that she is never in. I asked them for a fixed shift due to childcare but I was refused and was told I would be doing flexible shifts as they do not guve fixed shifts due to it not suiting the business which I agreed and have attended every meeting and been in time with my shifts etc however there is another women there who is the managers best friend. They have gave her a fixed shift that she asked for and asked after me. She is always late and has days off and has attended one meeting out of many many yet nobody says anything to her as she is the managers best friend. There is alot of unfairness at my work place. I just want to know will all of the factors help with my unfair dismissal case if mention them.
Customer: replied 5 months ago.
as you have mentioned the phone call would only be an issue if I deliberately listened into it but what about the messages that I have sent staff as they are saying they have them and that I asked staff to change stories and lie for me. I honestly do not know what I said in the messages or if I told them to lie I probably have said things which are not deemed appropriate and then I messaged them on the night as I was upset saying " they put my job on the line etc" but can that be a reason for dismal.
Expert:  Ben Jones replied 5 months ago.

you have to be sure that you can link all that has been going on with the reasons for dismissal - are they actually linked or were they just unrelated matters and you ended up being dismissed even if it had nothing t do with all of these other issues. just because there have been examples of unfair treatment does not necessarily mean that they are part of the reasons for the dismissal

Customer: replied 5 months ago.
If I was to resign from the 25th of July would 6 weeks be enough notice for my employer. I have been working there 6 years but will be 7 year's next month (August) I am meant to start back work on 5th September so I won't be at work for 6 weeks as I work term time or will I have to go back to work and work some days/weeks? Can they refuse my resignation letter and dismiss me and call me for a meeting in the holidays when am off??
Expert:  Ben Jones replied 5 months ago.

How much notice do you have to give under contract?

Customer: replied 5 months ago.
It goes on the years of service given.
Expert:  Ben Jones replied 5 months ago.

ok but what is your personal obligation, how much do you personally have to give?

Customer: replied 5 months ago.
I am not sure how much I would need to give personally. How much would a court case pay for unfair dismissal and would I get my job back if proved that I was dismissed unfairly?
Expert:  Ben Jones replied 5 months ago.

A tribunal cannot force the employer to take you back on. They can make such an order (rarely done) but even with that the employer does not have to take you back on. Instead you are likely to be looking at compensation only. Yo can use this calculator to get an idea of what you may be entitled to:

http://www.winstonsolicitors.co.uk/unfair_dismissal_calculator.html

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