Unfair dismissal - determining one year of service

sebtomato

Hi,

Does anybody know how the employement tribunal will determine whether someone has a year of service or not, to be able to raise an unfair dismissal claim?

Basically, my notice had to be given in writing as per my contract, but was only given verbally. My employer then took a week to send a letter to confirm (standard, non-recorded mail), at which point I had a year of service (including one week statutory notice). They are rejecting that I have one year of service, and can therefore raise an unfair dismissal claim, but I guess it won't be their call.

Thanks

Googlewhacker

What did the letter say?

And also when did you actually leave?

sebtomato

Hi,

I left two weeks before one year of employement, following a verbal termination (meeting with HR). The letter was received a week later, confirming that my employment had been terminated, and notice will be paid in lieu.

My contract does allow for payment in lieu of notice, but also states that notice has to be given in writing by either parties.

getmore4less

if you accepted the verbal and stopped turning up for work that looks like you agreed to the deviation from contract.

sebtomato

Sure, but it was not clear during the meeting that I would be paid in lieu rather than doing my notice period (in which case the effective termination would have been well after one year). The payment in lieu was only specified on the letter received.

getmore4less

Did you stop turning up for work?

marybelle01

sebtomato wrote: »

a new manager sets a meeting with him and a junior HR representative, and tells me that it is not working out and my employment is terminated today after the meeting. They will pay me my notice period, I don't have to go back to work tomorrow.

quoated from your post on 17-02-12

It seems that you were pretty clear on the day they sacked you that your job was terminated immediately and your notice would be paid in lieu. Did something happen different since then? Or are you just asking the same question again in a different way in case someone gives you a different answer?

sebtomato

No, it was made pretty clear that I didn't have to come back to work the following day, but I didn't know it would be a paiement in lieu (I didn't even know that was possible, and to be honest hadn't looked at my work contract in much details before the dismissal). I was assuming I would get a garden leave, i.e. being paid while staying at home. I didn't know at the time of the meeting that my employment rights would be much reduced if I didn't have a year of service, as I am not an employment expert.

My employment contract states that notice has to be given in writing, so a verbal notice is not relevant to determine the end of service, if a PILON is given.

To do back to my original question, how the tribunal will determine if I have a year of service, if there is a disagreement between the employee and employer? Do they just receive the claim and get elements from both parties? Is there some sort of pre-hearing?

robpw2

if notice was only meant to be in writing why did you not return to work after your verbal dismissal?
the et will determine your year of employment from the day you started to the day you finished .

marybelle01

But what you didn't know isn't relevant to the law, and you did know - because half a dozen people on here told you at the time.

sebtomato

marybelle01 wrote: »

But what you didn't know isn't relevant to the law, and you did know - because half a dozen people on here told you at the time.

I have glad to know that half a dozen people on an internet forum knew better than me what was said during that meeting! The only things clearly articulated were: I don't have to come back to work, and they will pay me during my notice period.

Actually, it is not as simple as some people may think here.

For determining the duration of service, you need to look at when the notice period is finishing, as opposed to the last day at work. If it is a garden leave, the Effective Termination date will be at the end of the notice period. In the case of a PILON, the last day of work can be extended by the statutory notice (one week) to determine the duration of service, and in my case, notice had to be given in writing. The contract also had the PILON clause optional, so it was not obvious whether it would be a garden leave or PILON, until confirmation was received.

Until a letter was received to confirm the termination and notice arrangement, I didn't know what my effective termination date could be. Until I had the dismissal meeting (without any prior warnings), I didn't know that my employer could do a PILON, and that the effective termination date would so important. I was just assuming that I would be paid during my notice period, and would be able to get compensations for unfair dismissal. I didn't know at that time that a claim could only be received after one year of service.

My employment lawyer has confirmed that a written notice had to be given based on my specific contract, and therefore I am very close or at one year of service, if statutory notice is to be included.

Obviously, my previous employer rejects this, as they know that the ET would automatically accept my unfair dismissal claim as no fair dismissal process was followed. However, it took them a week to send a letter, and not even via recorded delivery.

Does anybody know how the tribunal will determine if the claim can be received, i.e if I have a year of service, if there is a disagreement between the employee and employer? Do they just receive the claim and get elements from both parties? Is there some sort of pre-hearing? If both parties can't agree, do they still accept the claim if the service was very close to one year anyway, regardless of the various dates?

I appreciate people's comments, but would really appreciate someone with legal experience on the employment tribunal processes to comment, as it is the main question here.