Less than 12 months service - have I any rights?

Shafted_2

I have less than 12 months service and was 'sacked'/'made redundant' and told to go on Garden leave a couple of weeks ago. There was no disciplinary issue, in fact only positive feedback from manager. I asked for reasons, and the company simply said they had no work for me, despite taking on people with my skills in the last few weeks.

My contract has a grievance and disciplinary procedure, which was not followed in any shape or form.

I have involved my Trade Union, but they are taking a long time getting legal advice, and I can't speak directly to the lawyers.

I have also spoken to ACAS who said the company should have followed procedure and I should appeal, but it was a very short conversation and I am unsure how to proceed.

Any advice would be welcome.

Pete111

Can you tells us.

What type of firm you work for (size, industry etc) and waht you do

What exactly happened when you were sacked (what sort of process was followed, what reasons given etc)

What documentation you have had in relation to this

Whether you are still being paid currently and are still officially an employee (ie you cannot look for other work)

Whether your company has a redundancy policy that you are aware of

Cheers

P

Shafted_2

Medium Size IT company - 50 ish employees.

No process - I got a phone call ostensibly to arrange a meeting, and my boss interrupted me said, 'I'm sorry but I've some bad news. I'm going to have to let you go!'

I asked for reasons in writing, all I've had so far is an email from the MD, which said I'm sure your biss told you that we don't have any work for you.

I am still being paid, till end of month.

They have a redundancy policy and disciplinary and grievance procedure which as far as I can see has not been followed. There has been no consultation and no selection criteria were used.

zzzLazyDaisy

Your rights, if any, very much depend on your actual length of service (I know you said you have less than 12 months service, but that could be anything from 1 week........... to 11 months and 29 days)

If you can provide the following information you will get better advice:

1 How many months exactly have you worked there?

2 Has your employment terminated already, or are you currently on notice?

3 How long is your contractual notice period?

On the issue of procedures, until April 2009 all companies had to follow a compulsory statutory procedure. Failure to do so meant that the employee could make a claim to the employment tribunal even if s/he had less than 12 months service. That law was repealed on 6th April this year.

The employer may still have a contractual obligation to follow a certain procedure, but that will depend on what it says in the company's disciplinary and grievance procedures, and any redundancy procedures that may be in place. Do you have copies of these documents? They may be in an employee handbook, or on the Employer's website, for example.

Shafted_2

Your rights, if any, very much depend on your actual length of service (I know you said you have less than 12 months service, but that could be anything from 1 week........... to 11 months and 29 days)

If you can provide the following information you will get better advice:

1 How many months exactly have you worked there?

10 months - at end of August.

2 Has your employment terminated already, or are you currently on notice?

On notice till end of August.

3 How long is your contractual notice period?

One month.

On the issue of procedures, until April 2009 all companies had to follow a compulsory statutory procedure. Failure to do so meant that the employee could make a claim to the employment tribunal even if s/he had less than 12 months service. That law was repealed on 6th April this year.

The employer may still have a contractual obligation to follow a certain procedure, but that will depend on what it says in the company's disciplinary and grievance procedures, and any redundancy procedures that may be in place. Do you have copies of these documents? They may be in an employee handbook, or on the Employer's website, for example

There are procedures that seem standard in the Contract and Company handbook, they have the standard rights of appeal and right to raise a grievance etc.

It seems to me that they are definitely in breach of contract.

zzzLazyDaisy

Unfortunately you have no protection under general employment legislation, as even once you have served your notice, you are still well short of the 12 month service requirement for making a complaint to an employment tribunal.

The question of whether you have a claim for breach of contract will very much depend on the wording of the procedures.

However even if there has been a breach of contract, any compensation will be calculated by reference to how much longer you would have worked for them, had they followed proper procedures. From what you say, you were not dismissed for any misconduct or capability issue, but simply because they have a need for fewer employees with your particular skills, and they chose you (which they are entitled to do).

They should have had a meeting with you, and explained the situation, before terminating your contract, but because you are being paid to the end of August, you probably wouldn't have stayed any longer even if they had done the job properly.

Do make sure that you get your full one month notice entitlement, plus any outstanding holiday pay owed to you.

You might also want to go over to the benefits board and see what help you might be entitled to, once your employment ends.

Good luck.

Shafted_2

Thanks for the advice, I thought it might be as you say. Technically they have breached contract, but compensation makes it not worth going for them.

I am however owed commission, but they've (only since sacking me) informed me of a threshhold that had to be met which cancels out profit I made for them.

They are also saying they will deduct several hundred pounds from my wage if I don't send my mobile phone back by Wednesday. I am waiting for a new one to come and want to clean any personal data from it before returning it. They have said they will refund the money once the phone is returned, but isn't this unlawful deduction from wages? They've even got the cheek to say the reason they need the phone back is for a new employee!!

I cannot believe how gullible I've been, I did ask about an extended contract when we started and the MD assured me that they were in it for the long term and would look at a form of words to re-assure me, the form of words never came. Then once you're in as an employee it's difficult to argue with your 'boss'.

I am also concened about the non-competition clause as I've been told they can still enforce it even if they've sacked me or made me redundant. If that's true then I will be considering declaring myself 'outlaw'!

zzzLazyDaisy

Shafted wrote: »

Thanks for the advice, I thought it might be as you say. Technically they have breached contract, but compensation makes it not worth going for them.

I am however owed commission, but they've (only since sacking me) informed me of a threshhold that had to be met which cancels out profit I made for them.

You should take advice on that. It very much depends on the wording of the contract/bonus scheme but a refusal to pay this money could amount to an unlawful deduction from wages.

They are also saying they will deduct several hundred pounds from my wage if I don't send my mobile phone back by Wednesday. I am waiting for a new one to come and want to clean any personal data from it before returning it. They have said they will refund the money once the phone is returned, but isn't this unlawful deduction from wages? They've even got the cheek to say the reason they need the phone back is for a new employee!!

Yes, this would be an unlawful deduction. Also, you are still an employee, albeit on garden leave. Provided you are allowed to use the mobile for personal calls, and not just strictly for work, then arguably that is a benefit in kind and part of the remuneration under your contract, so you should be allowed to keep the phone until the expiry of your notice period, or receive compensation for the loss of use. Again you need to seek advice on this point.

I am also concened about the non-competition clause as I've been told they can still enforce it even if they've sacked me or made me redundant. If that's true then I will be considering declaring myself 'outlaw'

If there is a valid non-competition clause, it could well still be valid. However this is a complex legal area. The wording of the clause may make it invalid (if the clause it too wide for example). Also certain breaches of contract by the employer may invalidate the clause. Again, you'd have to seek advice because it all depends on the particular wording of your contract. Also the court costs of such an action are very high, so your employer would have to have enough funds to pursue the action, and the action would really have to be necessary to protect their business.

As a final note - there is a strict 3 month time limit for making a claim to an ET. Start with the last day of service, go forward three calendar months and one day back. That is the absolute last day that the ET will accept a claim.

I hope things work out for you, it sounds as if you have been badly treated by your employer.

Shafted_2

Thanks very much for all your help. At this stage, some understanding of my position and re-assurance gives hope and also restores some of my faith in human nature. You're a star.

Pete111

Laisy Daisy has answered most of your queries as you say so there is little for me to chip in with.

Can I just add though that I thought existing regs concerning redundancy were unaffected by the changes to the Stat dispute Regs earlier this year? As such I believe a company still has a statutory (as well as in this case, contractual) obligation to follow a process in relation to redundancy and clearly they have not done this.

You have indicated that you do not wish to follow this up as the likely gains are small. However you may want to let the company know you have noted their failings here in order to encourage thim to fulfill their other obligations should they initially look to renage on these.

Finally many non-compete clauses are actually unenforcable (as LD says) and designed primarily to make employees think twice before jumping ship to a competetor. I would not worry overly about this if you are being made redundant and have already worked a period of garden leave but seeking advice won't hurt.

Good luck with everything

P

Cerealfreak

As everything has pretty much been answered the only other thing I would add is <source please> I was pretty sure under UK law any contract termination must be enforced in writing too.