Was sacked without warning by employer what are my rights?

robert_harper_2000

Hi gang,

My friend has been sacked from his job without warning.
He works from home online and was not put on a contract. He worked offline for a while and had a few family problems when he lost a relative. Communications have never been strong between this employee and employer. But when ever asked to attend office meetings 2 and a half hours away he always did. After all his problems he logged on and found he no longer had access to his work admin pages. After contacting the company they said as they had not heard from him within the month they had assumed that he no longer wanted to work for them and took him off the books.

He had received no warnings, no letter to say he had been dismissed. No P45! now he was not on a contract and we are unsure where he stands but surely the employer can not just and i quote 'assume' he isn't working for them anymore.

Any help greatly appreciated.

Rob

going2die_rich

A month is a long time to be out of contact with your employer, especially when working from home. It's not like the office where if someone doesn't show up you have concern by wondering if they are okay. Working at home people no doubt switch jobs a lot more without feeling the need to say anything.

Even when you are sick or have a reason for not being at work you still need to keep them informed. I'd personally say a weekly basis isn't too much to expect. Perhaps the first 2 weeks could pass with just the initial contact/reason but after that either you or someone on your behalf should be keeping work informed. After all, whatever has happened doesn't mean they can stop the business running.

robert_harper_2000

but regarding to legally where does he stand? because the employer has acted unreasonably too. Going to call ACAS too but wanted to get some opnions from you guys.

dacado

Uaually an employer would send a letter saying as we have not heard from you we are going to terminate your employment unless you contact us with good reason for absence in --- days.

However with no contract not sure where stands, did he have any verbal agreements or terms and conditions emailed or sent to him when took up position???

dmg24

How long had he worked for the employer?

What kind of work was it, and what had he been doing for the month without contact?

robert_harper_2000

Hi guys thanks for all the help.
He was an employee with this company and worked a little under a year for them. There was no contract but as i understand it there doesn't need to be a written contract for an employee as there is a statutory one. It was online homed based work and within the month he did some offline work and was sick. ( as i mentioned earlier he had personal problems). he did not receive a warning, and he didn't even receive a letter to say he was no longer working for them. They just ignored him and in 'assumed' he wasn't working for them.

dmg24

You say he did some offline work, did he not submit anything? Was the work on an ad hoc basis, or did he have regular set hours?

The contract is not really relevant, you are correct in that it does not have to be written (although he should have received something, it doesn't really make a difference to the situation).

Have they offered him payment for a notice period?

As he has been employed for less than a year, he has few rights. He is entitled to paid notice, however it is difficult to say how much this would be considering the (spurious?) nature of his employment.

londondulwich

An employee cannot dismiss himself. An employer dismisses either directly or indirectly (constructively). The employer cannot assume that an employee has stopped working for them and then expect all their obligations to end because of their assumption.

At best your friend would have a claim for breach of contract. The financial rewards from that would be based on the statutory default position in the absence of a written contract.

So, one week's pay for the notice period, accrued holiday pay and an award for the failure to give a written statement of terms, this can be two to four weeks pay.

robert_harper_2000

I am getting a lot of different views here so hard to tell which is the right one but i really appreciate all your help in this matter.

Drea

Did he ever tell them he was sick?

jobbingmusician

I did write a long response to this earlier today, but it was lost in the wonderful MSE system. So I will try again now (after two cocktails – beware!)

This is what I would advise your friend to do.

1. write to the employer and head the letter GRIEVANCE. Outline the situation: that he feels he has been sacked without any notice, with no clear indication of why he has been sacked. Explain that he believes the reason may be for not keeping in touch, but stress that he was not notified in advance that there were any concerns about this. Request a copy of their disciplinary policy. (Give them a timescale to send it – I would suggest 10 working days). If this case ends up in Employment Tribunal (not as scarey as it sounds – see below) it will be important for your friend to demonstrate that he has raised a grievance and explored every avenue possible for constructive dialogue with his employer. It will be EVEN MORE IMPORTANT (tribunals tend to start from a position of sympathy with the employee) for the employer to demonstrate that they have treated the employee consistently and fairly, in accordance with their own procedures.

2. Have a look at http://www.acas.org.uk/index.aspx?articleid=1276

3. Start assembling a case, in his own mind at least. Did he notify the employer in any way of his current difficulties? Had the employer contacted him to say there were concerns about his level of contact over the past month? (The employer has some responsibility for keeping in touch, as well as the employee)

4. I think it is probable that the employer will start making overtures to your friend at this point. Either that, or they will deny that he is an employee and claim that he is/was self-employed. Can your friend demonstrate employment? Look at http://www.direct.gov.uk/en/Employment/Employees/EmploymentContractsAndConditions/DG_10027916 for more information.

5. Read the disciplinary policy. Employers should not dismiss out of hand unless it is for gross misconduct, and even in that case they should hold a disciplinary hearing and give the accused person a chance to defend themselves. If your disciplinary policy is of this type, head to the CAB for further advice.

If the CAB is difficult to contact, or your friend feels that he can handle the case himself, the next stage is probably to write to the employer asking why they have terminated the contract without following their own disciplinary policy. This shows you are acting as a totally reasonable employee! Again, give them a timescale for reply.

Obviously if you went to the CAB you are now following their advice, but if this is not possible, the next step is to consider an Employment Tribunal. Yes, you cannot raise an ET for unfair dismissal if you have been there less than a year, but you can raise one for breach of contract. Your friend has not been given notice or access to a fair disciplinary process.

Keep us informed. I should state that I am not a legal expert. I am an employer, and also an employee who has successfully conducted my own defence in an ET (with less than a year’s employment rights).