2 Years rule for employment rights. Very confusing

Undervalued

KiKi wrote: »

I think what sangie is saying is that if they pay you in lieu for 2 months, that 1 week statutory notice period is still added to your time served. Paying you for 2 months in lieu doesn't mean they can ignore the 1 week notice period.

That is my understanding.

If you have a contractual entitlement to X months notice then they must pay you for that. If they don't you can make a wrongful dismissal claim regardless of length of service.

However only your statutory notice entitlement (1 week) counts towards the two year qualifying period for an unfair dismissal claim.

If that week's statutory notice takes you to two years service then you can make an unfair dismissal claim. This is fairly basic stuff so I am struggling to see why three different professional would give conflicting answers.

Or is there something else we are not being told here?

One other point which may be useful and is often forgotten:-

Unless your contract gives the employer the right to make payment in lieu of notice then, technically, they are in breach of contract by doing so. Normally this is not an issue as most people are quite happy to be paid and not have to work. However there can be certain situations where it can be a significant disadvantage!

Guest101

sangie595 wrote: »

Actually, sometimes it does. The right to full pay for notice where a dismissal is during sickness is overridden by contractual terms if the contractual notice is longer.

Yes but that's over and above the minimum.

Guest101

getmore4less wrote: »

and holidays, quite a lot of that legislation can be overwridden by contract.

Again only above the statutory minimum.


So you have a contractual right to 35 days holiday, but a statutory right to 28.


Yes the contract overwrites the statute, but does not void that right to a minimum.


IE you cant contract out the statutory minimum


(perhaps I could've phrased it better)

sangie595

Guest101 wrote: »

Yes but that's over and above the minimum.

No, it isn't. Perversely, if you are sick and have statutory notice then you get full pay; but if your contractual notice is more than a week longer than the relevant statutory leave, you only get whatever sick pay is relevant - which could be ssp or nothing!

Guest101

sangie595 wrote: »

No, it isn't. Perversely, if you are sick and have statutory notice then you get full pay; but if your contractual notice is more than a week longer than the relevant statutory leave, you only get whatever sick pay is relevant - which could be ssp or nothing!

Oh I do see what you mean, yes that makes sense.

getmore4less

Guest101 wrote: »

Again only above the statutory minimum.

So you have a contractual right to 35 days holiday, but a statutory right to 28.

Yes the contract overwrites the statute, but does not void that right to a minimum.

IE you cant contract out the statutory minimum

(perhaps I could've phrased it better)

There is far more to holiday legislation than the number of days.

much of which can be overridden by contract.

getmore4less

sangie595 wrote: »

No, it isn't. Perversely, if you are sick and have statutory notice then you get full pay; but if your contractual notice is more than a week longer than the relevant statutory leave, you only get whatever sick pay is relevant - which could be ssp or nothing!

more bizarre is the employer contractual notice also applies to the employee resigning.

this is clearly a legislation mess up unless someone can point at a consultation document that explains the reasoning.

Mishomeister

getmore4less wrote: »

The key is when the notice is given that +1 week must give you the qualifying period.

it is not termination date + one week although in cases of full PILON they may be the same

Just had an advice from Irwin Mitchel Lawyers over the phone who said that as the payment in lieu of notice is incorporated in to my contract and is validly created it allows the employer to dismiss me immidiately and hence they have paid me the payment in lieu of notice the statutory week would not apply in my case.

sangie595

Mishomeister wrote: »

Just had an advice from Irwin Mitchel Lawyers over the phone who said that as the payment in lieu of notice is incorporated in to my contract and is validly created it allows the employer to dismiss me immidiately and hence they have paid me the payment in lieu of notice the statutory week would not apply in my case.

Well I am afraid that I still disagree with them! Pay in lieu does not change the situation in terms of calculating service - it is still the date of dismissal plus statutory notice if the dismissal is immediate ( without serving notice). The fact they have observed contractual notice by paying it on lieu is irrelevant.

Mishomeister

sangie595 wrote: »

Well I am afraid that I still disagree with them! Pay in lieu does not change the situation in terms of calculating service - it is still the date of dismissal plus statutory notice if the dismissal is immediate ( without serving notice). The fact they have observed contractual notice by paying it on lieu is irrelevant.

Thanks Sangie. Would you(Or any one else) be able to advice me of the source where I could find out for sure?

I ahave rang ACAS 3 days ago and they have told me what you are sayinbg, but have rang them again today and they said pretty much the same as Irwin Mitchel.