Dismissed after 28 week sick pay period, not warning from employer

dori2o

LittleVoice wrote: »

I think he may have been entitled to more than 2 weeks holiday pay. The minimum statutory holiday is 5.6 weeks a year (224 hours in the case of your dad). As he has been off sick for 28 weeks, I presume he will not have been paid for any bank holidays. If he did not receive any notice to expire on 25 June, then his finishing date for accruing holiday should be ten weeks from the time that he first received notification of his termination. That would take him way past the half-way point in the year, not 80 hours worth of holiday. Even if he had received notice, he would still be entitled to more than 80 hours pay in my view because of the BHs.)

Hi, thanks for the replies, my Dad is very intreagued to hear every reply.

The employer has actually been paying for each Bank Holiday, so as I see it, that is New Years Day, Good Friday, Easter Monday, May Day and Spring Bank. So 5 days already paid.

Could anyone comment on Katsu's question. This is one thing that has been running around my mind also.

zzzLazyDaisy

To answer your question about notice pay.

The law imposes an obligation to pay notice, even if the employee is off sick and has exhausted any entitlement to sick pay.

The exception to this rule is where the contract of employment gives a right to a notice period which is one week longer than the statutory minimum, in that case the employee loses the right to be paid during the notice period, if he is off sick.

Don't ask me to justify this, I know how bonkers it sounds, but that is the law.

So if your Dad has been employed for 10 years, his statutory notice is 10 weeks. Provided the contract does not give him a notice entitlement of 11 weeks or more (for example if he was a senior employee with a three month contractual notice period) then he is entitled to be paid his normal salary for the 10 week's notice.

On the point about the P45 - this document is issued on termination of employment, so yes, it does mean that your Dad has been dismissed.

Please speak to ACAS, they will explain all this to you.

I hope this helps

Daisy

BLT_2

dori2o wrote: »

The sick notes have simply been for 8 weeks at any one time for 'Back Pain' (He is currently sufferring from Scoliosis, 4 slipped disks, and nerve damage)

He did not include any notes with his sick notes.

The employer has never made contact over the 28 week period. He was however aware that my had back problems as this has been ongoing for 2 years.

The whole relationship has been frosty with the employer for 6 years since HMRC declared under IR35 that my Dad was an employee not a contractor, and the employer demanded my dad pay half the National Insurance bill, and my Dad refused to do.

And apart from sending in sick notes with no explanations attached did you father having any contact with the employer over the 28 weeks. Employment is a 2 way contract, I am not disputing that there may be entitlements you father has not been given, but this thread seems to be geared around making the employer the big bad wolf.

At the least it would have been nice for your father to make contact with the employer other than just sending in a sick note every couple of weeks so that he could explain the situation.

If he has not being doing this and has just stayed off work sending in notes with no personal explanations then sadly I would say that the employer is better off without him.

LittleVoice

dori2o wrote: »

The employer has actually been paying for each Bank Holiday, so as I see it, that is New Years Day, Good Friday, Easter Monday, May Day and Spring Bank. So 5 days already paid.

Agreed those are the BHs up to now - and I think your dad's employers have been very fair if they have paid full rate for these days. It also seems to me that that also means the proportional statutory minimum holiday will have been paid up to the June date of termination.

dori2o

OK.

Whether the employer is better off, or my dad is better off out of that place is neither here not their and I'm not getting involved in a petty argument about it.

So.

I'm now unsure of the first step.

I've been though an unfair termination before with my wife and we first of all wrote to the employer asking for a statement of reason, asking why the employment had been terminated. Is this the case with my dads situation, or should we just be writing simply to request that he is given his notice pay in full within 28 days.

Also another thing.

We are under the impression that my Dad has been working for the employer for 10 years, but his latest 'terms of employment (which the employer issues every year) states he has only been employed since 01/01/2004.

He started to work for the employer in October 1999 as a sub contractor under the CIS scheme. In 2003 HMRC ruled that my Dad was in fact an employee of the company, not a subbie. They issued the employer with a bill for lost NIC contributions. (As explained before the employer waged a campaign issuing threats to my Dad if he refused to pay half of this bill) It is believed that this bill covered the period from the start of the sub contract work in 1999. Therefore would constitute that he has actally been an employee since this date.

Can anyone confirm if this is correct or not.

Also, would it be possible to get the date confirmed by HMRC.

zzzLazyDaisy

From what you say, it appears that your Dad has probably been an 'employee' in legal terms, throughout the whole period.

However, if the employer does not accept this, then your Dad would have to go to a tribunal for a ruling.

As far as the rest of your questions are concerned, I can only repeat my advice to contact ACAS. You are getting into potentially complicated legal territory. ACAS can discuss all the issues with you, and give you advice based on all the facts.

In my view, it is not possible to advise you without a full consideration of all the facts, and that is not possible on an internet forum.

For that reason, I am not going to contribute further to this thread, as I believe your father needs specialist employment law advice, which he can get free from ACAS

However I do wish him (and you) well.

Good luck.

dori2o

OK, we spoke to ACAS yesterday who have confirmed that the employer should have given my dad a notice period that he is now entitled to at his full rate of pay, also any holiday that will accrue during that notice period.

The employer, by not exploring all the facts by requesting meetings with my Dad and requesting medical evidence of his capability to return to work has not followed the correct proceedures.

I asked if there was any way the employer could turn around and claim he had not actually finished my dad, but the fact he has received his 'Final' pay, his accrued holiday entitlement, and P45, along with a letter thanking him for his service and wishing him the best for the future, is pretty damning evidence that he has been finished.

So, ACAS have asked us to send a letter explaining that my Dad is due 6 weeks notice pay (He has decided he does not want the hassle of fighting over ther extra 4 years in which HMRC declared him an employee), plus the extra accrued holidays, and set out exactly how much this comes to.

This is the letter

I am writing to you following receipt of your letter confirming my dismissal from the company.


This has come as quite a shock as at no time has my future, or possible dismissal been discussed with you and myself.


I have been in touch with ACAS, who have confirmed that under Employment Rights Act 1996, I am entitled to be given notice of your intention to terminate my employment contract as per the contractual and statutory notice entitlements i.e. 1 week for each complete years service, this service currently stands at 6 complete years. I am also entitled to full payment and any accrued holiday pay arising during this notice period.


To date I have received neither of these monies in full, neither have I received a written statement of reasons for dismissal, as is my right under s.96 of the above mentioned act.


The P45 you have sent confirms I have now left your employment confirming the date of termination as 25/06/2010. As no notice period has already been given, then the actual effective date of my termination should be 6 weeks following this date.


In order to resolve this matter I require that you make payment of the monies I am due in lieu of the correct notice period. 6 weeks, 40 hours per week, at a rate of £11.50 per hour, as per the terms of my contract.


This totals £2760.


I am also entitled to any holiday entitlement that will accrue during this period.


I am entitled to 5.6 weeks holiday per year, apportioned appropriately if I do not complete a full years service. In terms of hours, this means I am entitled to a total of 224 hours leave in one year. (5.6 weeks x 40hours per week) again apportioned depending on the period of service.


To date I have received 2 weeks paid holiday from you and 4 bank holidays. This is a total of 112 hours. (80 hours holiday and 4 Bank Holidays at 8 hours each)


From 02/01/2010 till my effective date of termination on 06/08/2010, I will have accrued 133.17 hours annual leave (224hrs / 365 x 217 days). I have so far been paid for 112 hours, therefore I will be owed a further 21.17 hours annual leave, a total of £243.48.


In conclusion, I am entitled to these payments which total £3003.48.


I will give you 14 days to respond to my letter, letting me know a date by which I will receive payment.

If you do not respond, or you do not respond positively, within this time period, I shall have no other option than to seek further guidance from ACAS and possibly an employment specialist solicitor.


I hope to resolve this matter as soon as possible and avoid the possibility of this reaching an Employment Tribunal.


Yours sincerely

Googlewhacker

I thought he had been paid all his holiday?

SarEl

dori2o wrote: »

OK, we spoke to ACAS yesterday who have confirmed that the employer should have given my dad a notice period that he is now entitled to at his full rate of pay, also any holiday that will accrue during that notice period.

The employer, by not exploring all the facts by requesting meetings with my Dad and requesting medical evidence of his capability to return to work has not followed the correct proceedures.

I asked if there was any way the employer could turn around and claim he had not actually finished my dad, but the fact he has received his 'Final' pay, his accrued holiday entitlement, and P45, along with a letter thanking him for his service and wishing him the best for the future, is pretty damning evidence that he has been finished.

So, ACAS have asked us to send a letter explaining that my Dad is due 6 weeks notice pay (He has decided he does not want the hassle of fighting over ther extra 4 years in which HMRC declared him an employee), plus the extra accrued holidays, and set out exactly how much this comes to.

This is the letter

This is one of the reasons why I do not recommend ACAS. Their role is not to reperesent your best interests, their role is to ensure that employment disputes are resolved without recourse to the tribunal system.

If you send this letter, then you are informing your dad's employers that you have taken legal advice, allowing them to come back with a letter saying this was all a big misunderstanding and someone made a mistake. They will undoubtedly them simplt reinstate him and go through the correct process, and then dismiss him again, but legally this time.

If, on the other hand, you get a lawyer and begin a tribunal claim, the employer cannot "put right" what they have done - they will either have to settle (for more than just the notice and holiday pay owed) or take what appears, on the face of it, to be a huge risk that a tribunal will award for unfair dismissal on top of failure to pay proper notice. In other words, in either case, there is a good probability that your father will be quids in. Given the circumstances it would be easy to argue that the employers actions destroyed trust and confidence, which is why he did not appeal against the dismissal (which they appear to have forgotten to tell him he had a right to do anyway - another offence the employer has committed).

If your dad is happy that the employer should get off scot free for doing this to him after his years of service, and settle for payment of his notice only, then fine. If he thinks that his employer should have to act lawfully and properly, and treat him like a human being and not a disposable item - then do not send the letter and go and see a lawyer. Speaking personally, it makes my blood boil when I see employers doing things like this, and I wouldn't want to see the get away with using staff as nothing more than the rubbish they have finished with. But that's me. You have my advice, but only you can decide if you are willing to fight for it.

dori2o

I actually asked ACAS about this (claiming that the dismissal was a mistake) and they said that based on what had been sent by the employer and the wording of the letter then there is no doubt that the employer has dismissed him. Failure to pay the monies due will simply result in us starting an employment tribunal claim anyway. My Dad does not want his job back he just wants the money due to him.

According to ACAS you cannot simply start a claim,you must try and resolve the matter first with the employer and give them at least 28 days to resolve the issue.