2 Years rule for employment rights. Very confusing

Mishomeister

I appreciate your advices guys, but the point I am trying to make is that if there is a risk of the tribunal to the employer(which will be there), I believe there is significantly higher chance the employer will chose not to dismiss me but instead to keep me or offer a better exit settlement.

I know that tribunals don't award huge amounts of money for unfair dismissal and my aim is to reach agreement with the employer out of tribunal, whether mutualy or though ACAS.

I strongly believe that the employer will be more keen to negotiate if I am past 2 years as tribunal is also cost and potential reputational damage for them.

agrinnall

Mishomeister wrote: »

I appreciate your advices guys, but the point I am trying to make is that if there is a risk of the tribunal to the employer(which will be there), I believe there is significantly higher chance the employer will chose not to dismiss me but instead to keep me or offer a better exit settlement.

I know that tribunals don't award huge amounts of money for unfair dismissal and my aim is to reach agreement with the employer out of tribunal, whether mutualy or though ACAS.

I strongly believe that the employer will be more keen to negotiate if I am past 2 years as tribunal is also cost and potential reputational damage for them.

Employers tend not to react very well to blackmail, however it is couched, and may decide that the cost of defending at a tribunal may be worth it to stamp out future attempts.

sangie595

Mishomeister wrote: »

I appreciate your advices guys, but the point I am trying to make is that if there is a risk of the tribunal to the employer(which will be there), I believe there is significantly higher chance the employer will chose not to dismiss me but instead to keep me or offer a better exit settlement.

I know that tribunals don't award huge amounts of money for unfair dismissal and my aim is to reach agreement with the employer out of tribunal, whether mutualy or though ACAS.

I strongly believe that the employer will be more keen to negotiate if I am past 2 years as tribunal is also cost and potential reputational damage for them.

Sorry, but dream on. There is no reputational damage from a tribunal. Nobody cares. No papers report it. They don't even send reporters to them these days. And, as I have already explained, they appear to have nothing to fear. You haven't caught up with the times - you cannot speculatively apply for a tribunal any more. It costs you money. A lot of it. And when you have paid that money you will be allowed to go to ACAS who will tell you that you have no case!

It appears to me that you know that you have no case, and your entire strategy is based on, as aggrinall has suggested, blackmail. I am telling you now that this is a very dangerous strategy to adopt. If you think that a bad reference is the worst they can do to you, please think again. They can ensure that it will be a very, very, long time before you ever work again.

Oh, and I forgot to add, they can sue you for their costs. This is now becoming common. And tribunals are awarding them. You could end up owing your former employer a lot of money.

steampowered

Op, I'd suggest focusing your efforts on dealing with the disciplinary process and finding a new job.

I personally don't agree with the suggestion that threatening Tribunal proceedings would be blackmail. You haven't given us enough detail to make any sensible assessment of whether a decision to dismiss you could be within the employer's range of reasonable responses or not.

If you genuinely believe that you meet the 2 years' service requirement and your dismissal meets the legal test for 'unfair dismissal', you'd have to make a decision. In reality it is probably not worth pursuing at Tribunal as you only have 2 years' service, so you would be unlikely to get much compensation even if you win.

I personally feel a bit more bullish than powers who suggest threatening Employment Tribunal proceedings is 'blackmail'.

As you only have 2 years' service, even if a settlement were offered, it is likely to be very small.

sangie595 wrote: »

Oh, and I forgot to add, they can sue you for their costs. This is now becoming common. And tribunals are awarding them. You could end up owing your former employer a lot of money.

I think it would be helpful for the Op in evaluating his risk to put some numbers on this.

I refer to the Employment Tribunal statistics for 2015-2016. During that period 83,031 applications were made to the Tribunal. 658 costs awards were made.

This suggests that costs were awarded in 0.79% of cases. And apparently most of these were in favour of claimants. Out of those, the median costs award was less than £1,000.

Source.

sangie595

I don't disagree with the statistics. But you should take into account that in the same year the number of tribunal claims dropped by a not insignificant amount due to the costs making frivolous claims unwise. I also agree that, as I have said, the context of the detail is important. Which the OP hasn't provided. But the information that had been provided makes it easy to make a good guess. There are several complaints against him from a number of people. That is never good.

I would also point out that the OP thinks that this is a negotiation. It isn't. "Give me money or I go to tribunal" is not negotiation. "Go to hell " is now the most common response. And, as I said, getting dismissed is not yet the worst the employer can do. You have to be very careful when entering into these stakes, because there could be a lot worse to come.

getmore4less

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...?

Employment act still applies for working out service for those that use the effective date which can be later than the termination date.

Mishomeister

sangie595 wrote: »

They can ensure that it will be a very, very, long time before you ever work again.

What do you mean by this?

sangie595

Mishomeister wrote: »

What do you mean by this?

Well a bad reference won't help you get work again. But the telephone is still very much in use. All they need to do is give any potential employer a call and warn them off you. You'll never be able to prove anything, but it won't matter anyway - the truth would do. They had this employee who caused problems with his poor performance, was sacked after several complaints and then attempted to take them to a tribunal to get money out of them. Very few employers don't care about taking on someone who goes to a tribunal. If you take this line, you must be very sure that you will win said tribunal, because if you don't, you have nothing to vindicate you. Even if you got a small pay out from the employer, you still have nothing to vindicate you, and nothing to stop them doing this. You've been with this employer for two years nearly - potential employers are going to expect to go to them for a reference, and are going to be looking for a convincing reason for you leaving. And you can't hide two years of work on a CV.

Mishomeister

sangie595 wrote: »

If you take this line, you must be very sure that you will win said tribunal, because if you don't, you have nothing to vindicate you.

I would only take this line if I have and advice from solicitor that this is worth doing. If the advice was that I have a bad case, I wouldn't obiously go to a tribunal.

sangie595 wrote: »

And you can't hide two years of work on a CV.

What can stop me to say to the new prospective employer that I had 2 years career break, to say look after an ill family member abroad?

sangie595

Mishomeister wrote: »

I would only take this line if I have and advice from solicitor that this is worth doing. If the advice was that I have a bad case, I wouldn't obviously go to a tribunal.

So far you haven't even found a solicitor who thinks you can claim though! And you've already said that you would use the potential of a claim to force a settlement out of the employer. Things have changed a lot in the last couple of years, and this is not as easy as it once was.

Mishomeister wrote: »

What can stop me to say to the new prospective employer that I had 2 years career break, to say look after an ill family member abroad?

The fact that it is a lie and the minute they found out you lied, they could sack you? Even ten years later! The fact that if they have any sense they will check your story? The fact that live update on HMRC will show them that you have had an income this financial year? There are a million ways in which the truth gets out, so you will be looking over your shoulder every minute. That is why I said that an agreed reference in return for your resignation may be a better option for you. That reference, even if only neutral, is worth money.