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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48787
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My partner was sacked misconduct, we have already

Resolved Question:

My partner was sacked for gross misconduct, we have already established that the reason is not a valid reason however we are concerned that they are saying he has not been employed for 2 years or more. This is because 1 year and 11 months ago he left the company however 3 months later they asked his to come back which he did. He did have his P60 in the meantime. However on his return he did not receive a contract and kept the higher annual leave entitlement given to him previously due to long service. We also have a recorded conversation in which the director of the company said that he was still employed under his previous contract and that was why he did not have a new one. So my question is can we use this an argument against the two year rule which would normally apply ?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. When exactly did he return to his current job?

Customer: replied 1 year ago.
He returned in July 2014, he was dismissed on 7 June 2016.
Customer: replied 1 year ago.
Sorry I put 3 months I meant he returned after just 3 weeks
Expert:  Ben Jones replied 1 year ago.

How did he leave initially - did he resign?

Customer: replied 1 year ago.
he resigned to go to a new job bit after just 3 weeks his company contacted him and asked him to return which he did. However as explained he did not get another contract and he was told that he was on his original contract and kept then holiday benefits of long service he has been with the company for 12 years including this last period
Expert:  Ben Jones replied 1 year ago.

Thanks, ***** ***** that he was offered his old contract is a non-issue to be honest. Just because the company have done this does not mean he has kept his unbroken service in terms of continuity of service to give him unfair dismissal protection. They could honour that in terms of benefits and still give him the additional benefits one would get with longer service but that does not equal continuity of service for legal purposes, such as unfair dismissal protection. If he had officially resigned, submitted his resignation and the employer had acted on this to accept his termination and end his employment, then that would have amounted to a formal and legal termination of his contract. If he was then absent from work for more than a week, his continuity would have been automatically broken. This is determined by law, not what the employer decides. So even if they took him back on, with the same contract benefits as before, the fact is that there has already been an official break in continuity. As mentioned, the benefits they gave him on his return are given at the employer’s discretion, whereas the continuity of service for legal purposes is determined via other means and in this case a break had taken place due to his resignation and the absence of 3 weeks.

I'm sorry if this is not necessarily the answer you were hoping for, however I do have a duty to be honest and explain the law as it actually stands. This does mean delivering bad news from time to time. I hope you understand and would be happy to provide any further clarification if needed. If you are still satisfied with the level of service you have received I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 starts at the top of the page. Thank you

Customer: replied 1 year ago.
Thank you anyway. Could I just confirm that I am just being charged a one of payment for this service thanks
Expert:  Ben Jones replied 1 year ago.

I cannot see that you have taken out a subscription but just to be sure please contact***@******.***

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

Customer: replied 1 year ago.
Thanks, ***** ***** any special circumstances where it is possible to override the length of service? Also as he did not get a contract of employment on his return can this be to his advantage?
Expert:  Ben Jones replied 1 year ago.

I am afraid the failure to issue a contract on his return makes no difference, that does not affect the continuity of service. The break in service can only really be overridden if it was clear that there was no termination of employment and that there was perhaps an agreement for him to only be away from the business temporarily, such as on secondment or a career break. But this is clearly not the case here because he had formally tendered his resignation and there was clear intention on his part to end his employment with them. Hope this clarifies?

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