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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 73810
Experience:  Qualified Solicitor
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If a termination letter states ‘Your last day of service

Customer Question

if a termination letter states ‘Your last day of service with the company will be today 2nd June 2020.
In view of your gross misconduct, you will not be entitled to any payment in lieu of notice’
You will receive any payments that may be due to you less a deduction for the accident excess in due course. Your P45 will be sent to you as soon as possible thereafter’ but is then paid on June 26th 2020 a full months wage (minus deductions for tax and NI only), am I right in assuming that the last day of employment is the date of last payment?
JA: Have you discussed the termination with a manager or HR? Or with a lawyer?
Customer: the HR manager has not responded and my friend cannot afford a lawyer. He has brought a claim via an employment tribunal and has to provide a statement as to why the claim was submitted late. But if the payment date is the last date of employment it would mean that the claim was not late in being submitted.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: he was an employee and not a member of a union.
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: his employment was terminated for gross misconduct for two reasons. Firstly for refusing to return to work after furlough and second for not reporting an accident with a company vehicle when it happened or providing any details about the accident. He refused to attend the site of work if the company couldn't confirm that protocols to ensure social distancing etc were met (which the employer never did) and for which my friend has text message proof, and he also has proof that the accident was reported the day it happened and a company form completed the following day
Submitted: 6 days ago.
Category: Law
Customer: replied 6 days ago.
it must also be added that my friend believes that employment was terminated because he had whistleblown on the grounds of health and safety and has asked the tribunal to reverse its decison to not allow a case of wrongful dismissal to be brought as he had not worked there for two years or more, and that he is dyslexic and has filed for discrimination under protected characteristics
Expert:  Ben Jones replied 6 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 6 days ago.

How long did he work there for? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 6 days ago.
November 2019 to June 2nd 2020
Expert:  Ben Jones replied 5 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. It is not a given that the employment will terminate on the date the employee is paid as that is not directly relevant to the effective date of termination.

There have been cases where the payment date was the relevant date used to reference the termination of employment, but that was mainly to do with failures by the employer leading up to the termination, specifically not being clear that they were terminating the employer with a payment in lieu of notice provision. For reference, this was the situation in the case of Geys v Societe Generale (https://www.gqlittler.com/resources/news-and-views/when-is-an-employment-contract-really-over.htm)

However, that was quite fact-specific and the reason the payment date was used as the date of termination was that it was the first instance when it became clear that the employer was being terminated in this way, whereas the case you have is different because there was no PILON anyway (it was a gross misconduct dismissal) and the date of dismissal was clearly communicated.

These situations are almost always determined on the specific facts of the case so the Employment Tribunal will have to examine them in detail here to determine if such an argument would likely apply.

Expert:  Ben Jones replied 5 days ago.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.