Is this unfair dismissal?

hugonellie

this post is on behalf of my partner, so sorry if it doesnt contain all of the facts...

my partner started work (sous chef) for a large well known posh hotel chain approx 4 months ago. part way through her employment the general manager left his position (resigned), just before he left she signed a full time 'terms and conditions' of her employment as she had passed her 3 probationary period. a few days later another manager replaced him - a couple of weeks after that he summons her to work, and dismisses her on the spot. citing that because she had no car (discrimination), and her performance were the main reasons why she was losing her job. he went on to say that she was a great chef and she shouldnt take this personally and hed write her a great reference. confused to say the least!

she took this on the chin, and he said he would work out her pay prior to pay roll submitting her final pay so it could be amended. he never done this. she then chased him for these details and found out her pay was grossly wrong. her new contract that she signed states that after 3 months of employment (shed been there 3 months 16 days) she was entitled to a months notice. now at first her manager said she owed the company time/hours and was deducting this from her wages (which had already been put through). she queried this and mentioned her 1 months notice. he replied saying she was correct with her holiday/lieu pay calculations and would make a further payment on the 3rd but ignored the one month notice comments - instead saying shed be paid one week.

shes since replied stated her terms and conditions - we dont think he realises she had signed this document/contract - worked out what she thinks her pay should of been and complained about his lack of professionalism in dealing with this. hes now saying he will come back to her at some point this week

where does she stand? surely you cant be sacked for not being able to drive, when that wasnt an issue on hiring her? all of the trip advisor and customer comment cards say the food whilst she was there was great - even he said she was great. her head chaf has been sacked too (who would of been a great witness - who got a months notice in his pay slip), along with many other members of staff. it appears hes bringing in his own team. my partner just wants what shes entitled too - but were not 100% sure what that is. should she be happy with the months notice if he agrees or is this a tribunal job?

thanks in advance!

edit: i think ive posted this in the wrong section, can some one move it to the correct one if so? sorry

USM

Within the first year the company don't need a reason to let someone go providing it's not done on grounds of recognised discrimination - sex, religion, race, etc.

Emmzi

you can absolutely be dismissed for not being able to drive if it is a requirement for the job. driver/ non driver is not a legally protected attribute.

In the first year of employment she has few rights. "It's not working out" is a good enough reason in the eyes of the law.

Is it unfair? yes
Is it legally unfair? no.

heretolearn_2

You can't go to a tribunal for unfair dismissal until you have been with the employer for 12 months, so whether it is or isn't, is moot.

She should get her one months notice money though; if it isn't forthcoming the best approach is to go to the small claims court.

Jarndyce

Hmm. Sounds like she ought to get the notice pay though - depending on exactly what the 'contract' says. If it says that she will automatically get a months notice after three months service, that's fairly clear, but might it not say that she will get a months notice after passing her probation, which might in turn require written confirmation - which does it say?

Unfortunately its not unlawful to discriminate against non-drivers, nor to dismiss someone within the first 12 months of service (except for an unlawfully discriminatory reason).

hugonellie

thanks for the replies

Jarndyce wrote: »

Hmm. Sounds like she ought to get the notice pay though - depending on exactly what the 'contract' says. If it says that she will automatically get a months notice after three months service, that's fairly clear, but might it not say that she will get a months notice after passing her probation, which might in turn require written confirmation - which does it say?

Unfortunately its not unlawful to discriminate against non-drivers, nor to dismiss someone within the first 12 months of service (except for an unlawfully discriminatory reason).

you dont get the contract unless you pass probation - her signed terms and conditions of her new 'full time role' states between 3 month and 1 year she is entitled to a months notice pay.

i think whats really annoying is the fact hes not getting back to her when he says he will, shes having to tell him AND payroll what shes entitled too.

she never needed the car for her employment - shes a chef, in a hotel - she was never late or anything so its not a valid reason surely?

they have miscalculated her pay twice now. shes now having to wait for payroll to process the first !!!! up, and if he agrees to her months notice, she will have to wait for that payment too - is that right?

Jarndyce

Well it is reasonable enough to allow them time to process the payment. If she thinks they are prevaricating she can write setting a deadline after which she can submit a claim.

As far as the driving is concerned no it would not be a valid reason had she qulaified for protection against unfair dismissal, but she has not, so it is academic.

scheming_gypsy

To be perfectly honest, it sounds like he has his own sous chef so your other half is being booted out of the door to make way for them. As he's already said she's a great chef and will give her a great reference, so he needed another excuse to boot her out.

hugonellie

Jarndyce wrote: »

Well it is reasonable enough to allow them time to process the payment. If she thinks they are prevaricating she can write setting a deadline after which she can submit a claim.

whats a reasonable time? he admitted the first mistake thursday 24th, and she is receiving the payment for that on the 7th. hes certainly not replying to her in what id call a timely manner, in fact hes only replying when she chases him.

scheming_gypsy - this is exactly whats happened, hes brought his own team in - in fact she showed them round the kitchen - unknowing who they were. which is fair enough, clearly nothing either of us can do about that, but he should be paying her what her contract states right?

without savings wed of been short on this months bills/mortgage - which is !!!! as its HIS mistake. when he realises she has a permanent contract and admits she should be getting a full months notice, how long should she be waiting for this third payment?

if he denies she has this contract, or is entitled to the months pay, how do we take it further? a letter to head office? small claims?

scheming_gypsy

Any outstanding payment will usually come on the next pay run. Sometimes as a good will gesture places will pay it earlier but it's usually on the normal pay run.

hugonellie

scheming_gypsy wrote: »

Any outstanding payment will usually come on the next pay run. Sometimes as a good will gesture places will pay it earlier but it's usually on the normal pay run.

ah in this case then hes made an early payment, as 7th is mid way through. they are paid the last friday of every month.

so on the third payment should he chose to honour it, she should get that before or on 30th dec?