2 Years rule for employment rights. Very confusing

KiKi

Sangie (and others who are knowledgeable), from the gov.uk website:
"Your employment can be ended without notice if ‘payment in lieu of notice’ is included in your contract. Your employer will pay you instead of giving you a notice period."

From ACAS:
"How an employer approaches PILON will usually depend on what provision has been made for it in the contract of employment. In some instances, a contract may stipulate that termination can be made immediately by making a payment in lieu of basic salary for the notice period. ... Without contractual provision, a termination of employment with PILON is likely to be a breach of contract."


So that seems to be saying that PILON means employment is terminated immediately and therefore any notice period - contractual or statutory - is waived...?

And this is an interesting case: http://www.hrzone.com/engage/employees/pay-in-lieu-of-notice-how-to-protect-yourself


So perhaps the statutory notice period can be waived, but this is down to whether you had an express PILON clause in your contract...?

Mishomeister

KiKi wrote: »

Sangie (and others who are knowledgeable), from the gov.uk website:
"Your employment can be ended without notice if ‘payment in lieu of notice’ is included in your contract. Your employer will pay you instead of giving you a notice period."

From ACAS:
"How an employer approaches PILON will usually depend on what provision has been made for it in the contract of employment. In some instances, a contract may stipulate that termination can be made immediately by making a payment in lieu of basic salary for the notice period. ... Without contractual provision, a termination of employment with PILON is likely to be a breach of contract."


So that seems to be saying that PILON means employment is terminated immediately and therefore any notice period - contractual or statutory - is waived...?

And this is an interesting case: http://www.hrzone.com/engage/employees/pay-in-lieu-of-notice-how-to-protect-yourself


So perhaps the statutory notice period can be waived, but this is down to whether you had an express PILON clause in your contract...?

This is interesting,

To clarify,

My contract says:

Then later contract says:
You are entitled to receive as a minimum the following wtritten notice to terminate my employment:

2 Months if employed by the company for over 6 months.

And finally the actual handbook says:



As can be seen PILON is only mentionned in the employee handbook(which was not provided to me prior to me joining the company) but is not directly mentionned anywhere in the contract.

sangie595

KiKi wrote: »

Sangie (and others who are knowledgeable), from the gov.uk website:
"Your employment can be ended without notice if ‘payment in lieu of notice’ is included in your contract. Your employer will pay you instead of giving you a notice period."

From ACAS:
"How an employer approaches PILON will usually depend on what provision has been made for it in the contract of employment. In some instances, a contract may stipulate that termination can be made immediately by making a payment in lieu of basic salary for the notice period. ... Without contractual provision, a termination of employment with PILON is likely to be a breach of contract."


So that seems to be saying that PILON means employment is terminated immediately and therefore any notice period - contractual or statutory - is waived...?

And this is an interesting case: http://www.hrzone.com/engage/employees/pay-in-lieu-of-notice-how-to-protect-yourself


So perhaps the statutory notice period can be waived, but this is down to whether you had an express PILON clause in your contract...?

Yes they can certainly use PILON to terminate the contract early. But the way the qualifying period for an employment tribunal works is somewhat different. So even when a contract is terminated under the two years, the tribunal had the authority to add the one week statutory notice to the termination date. This is to prevent an employer from disingenuous dismissal simply to prevent someone teaching the qualifying period.

However, the fuller details here are quite worrying. For a start, there is a union involved, so the OP should be listening to them, not randomly consulting solicitors. If the union find out that he had been doing this, they will withdraw representation. Secondly, the OP appears to believe that a tribunal will reconsider the employers view of performance failure. They will not. If the employer considers that the performance is not up to standard, then that is the end of the matter. The tribunal cannot substitute their own opinion for that of the employer. So the "explosive" evidence that the OP believes they hold on this matter is irrelevant - if the employer says their performance is unavoidable that that would be a fair dismissal.

On that basis I am inclined to agree with others here that reaching the qualifying date is not likely to make any difference to a tribunal, for which the OP will have to pay a great deal of money to be told that they have been fairly dismissed. Unless, of course, the union think it is worth the risk and their own lawyers consider it to be a case worth taking on. I doubt they would. And I suspect that some of the legal advice may be based upon the principle of letting the OP down gently, rather than appearing to suggest that there is something wrong with their performance. I don't see this would be a winnable case, based on what the OP has said, even if they reached the two years. Happy for the OP to try to convince me otherwise, but right now, I would see it as unsustainable, and the likely outcome would be a lost case, a lot of expenditure, and no reference. I think I might be inclined to look at whether a resignation would achieve a neutral reference.

sangie595

Ps sorry about the spelling! Predictive keyboard and foggy head! I think what I am saying is clear though?

Mishomeister

sangie595 wrote: »

Secondly, the OP appears to believe that a tribunal will reconsider the employers view of performance failure. They will not. If the employer considers that the performance is not up to standard, then that is the end of the matter. The tribunal cannot substitute their own opinion for that of the employer.

Sangie,

Would you mind clarifying the above.
What I wish to clarify myself here is my alleged underperformance there is not something that has been proven beyond a doubt.

It is not the case of where for example I had sales target to say sell 20 mobile phones a month(I am not in mobile phone business so this is just hypothetic example) but was not achieving it and therefore clearly underperfornming, this is about me being a manager and few members of staff making complaints against myself.
The employer did not at all investigate those complaints but just automatically assumed I was at the wrong.

mariefab

For relevant caselaw see below:
In particular Lord Denning's quote in paragraph 4, the first sentence of para 8 and the first half of Judge Peter Clark's quote in para 15.


http://www.bailii.org/ew/cases/EWCA/Civ/2004/271.html

sangie595

mariefab wrote: »

For relevant caselaw see below:
In particular Lord Denning's quote in paragraph 4, the first sentence of para 8 and the first half of Judge Peter Clark's quote in para 15.


http://www.bailii.org/ew/cases/EWCA/Civ/2004/271.html

Thank you. My head isn't in looking up case law right now, and I can't sit at my computer yet - the tablet just isn't as easy to work on. That was very helpful.

sangie595

Mishomeister wrote: »

Sangie,

Would you mind clarifying the above.
What I wish to clarify myself here is my alleged underperformance there is not something that has been proven beyond a doubt.

It is not the case of where for example I had sales target to say sell 20 mobile phones a month(I am not in mobile phone business so this is just hypothetic example) but was not achieving it and therefore clearly underperfornming, this is about me being a manager and few members of staff making complaints against myself.
The employer did not at all investigate those complaints but just automatically assumed I was at the wrong.

What constitutes underperformance is always going to lie within the employers right. The tribunal will absolutely not substitute their own opinion for the employers. This is where most people go wrong when they look at tribunals. They think they look at the case again and make up their own mind about what is fair or not. They never do that. This isn't about your situation, it is about all situations.

And your assessment of what is happening is also wrong. They will be investigating those complaints and not assuming anything. That is what a disciplinary is for! You will have a meeting, at which someone will put the case as to your transgressions. You will have an opportunity to dispute that view. They will make a decision. Having an investigation in the way you appear to think they must is not actually required. They don't need to prove anything beyond a doubt to you before the hearing! And they don't have to prove anything beyond a doubt anyway - this is not a criminal court and that test does not apply to employment law. The test in employment law is whether it is reasonable for the employer to come to such a conclusion in the circumstances. And I'd need to be clear that a manager and "a few members of staff" (that is, more than one) would almost certainly weigh heavily in favour of the employer coming to a reasonable conclusion that it is you in the wrong. Context is important, and I don't have that (that is, what is being alleged), but as a general rule, if several people are saying it, then I'd say you have an exceedingly weak case for tribunal. In such circumstances I would be trying to mitigate at hearing, to get an outcome less than dismissal because I wouldn't expect to be able to win a tribunal. So I'd be trying for a second chance for you. But I can't really suggest a strategy for that based on no information about what the allegations are.

It is possible that this assessment is wrong. Without knowing the allegations I can only base it on the generality of experience. But in any unknown scenario I would be happy to bet that my assessment is 90%+ correct, because that is based on knowing how tribunals think and what the law allows them to do. The error almost all lay people make is in what they think a tribunal can do. I believe you are making that error.

ScorpiondeRooftrouser

Mishomeister wrote: »

That's correct.



Their diciplinary pack is really week and full of inconsistencies. For example It would say that I havesaid an x thing and attach an email from myself as an evidence, however in that email I am saying an opposite thing to what they are claiming I say.

With due respect, having read your postings here I wouldn't rely on your own interpretation of that email as being the one that an independent observer would concur with. I imagine English is not your first language, and a lot of things you say in this thread come over to me at least as ambiguous and unclear.

Undervalued

ScorpiondeRooftrouser wrote: »

With due respect, having read your postings here I wouldn't rely on your own interpretation of that email as being the one that an independent observer would concur with. I imagine English is not your first language, and a lot of things you say in this thread come over to me at least as ambiguous and unclear.

Absolutely.

Similarly the difficulty in getting a clear answer from four (?) solicitors plus the union. Plus there seems to be a huge misunderstanding of the significance of crossing the two year line.

As I have said before the two years is completely irrelevant unless he actually has a winnable case that would be cost effective to bring.

Based on what has been posted here I think he would struggle and even in the unlikely event he did win I very much doubt it would be cost effective.