Contract breach by employer ?

Lindsey614614

Hi.
Could anyone confirm the following is correct.

You have to have at least 2 years service to claim constructive dismissal or unfair dismissal ?
But no service time frame for wrongful dismissal ? If that results from a contract change ( breach ) by employer reducing hours by 50% with no consultation.. hours given to another employee

lincroft1710

Have you been dismissed or have you resigned?

Lindsey614614

Hi.
It is my niece.
she left as she also saw a text from employer offered the other day ( so no job ) offered to another employee but they could not start for 3 weeks ..when this came to light she left. So intended to get rid in 3 weeks and even had the nerve to ask her to give notice. she has been to ACAS. and had certificate yesterday . Employer would not engage with early conciliation. claiming contact breach as well as holiday pay owed.

Jillanddy

There's almost nothing to be gained from wrongful dismissal - notice pay is pretty much about it. And then you'd need to be dismissed or resign AND not be paid for your notice period, assuming of course that you didn't reason without giving notice, in which case you get nothing. Wrongful dismissal does not replace unfair dismissal, it is an entirely different sort of case, and you can only pursue the contractual loss from being dismissed. If there is no loss there is no case.

Under two years service, with one or two exceptions like unlawful discrimination, the employer can do pretty much anything they like. That would include cutting your hours and giving them to somebody else. 

TELLIT01

How did she manage to see the text?  If she did so by viewing it on a device to which she shouldn't have access, e.g. manager's work phone, she could be in bother anyway.

Undervalued

Lindsey614614 said:

Hi.
It is my niece.
she left as she also saw a text from employer offered the other day ( so no job ) offered to another employee but they could not start for 3 weeks ..when this came to light she left. So intended to get rid in 3 weeks and even had the nerve to ask her to give notice. she has been to ACAS. and had certificate yesterday . Employer would not engage with early conciliation. claiming contact breach as well as holiday pay owed.

Yes, based on what you say she may well be able to claim wrongful dismissal (i.e. breach of contract). That should yield her pay for the missing hours she was contracted to work plus any holiday pay she is due. She would also have to be allowed to work whatever notice she is entitled to (one week unless contract specifies more) or receive payment in lieu.

What she won't get is any compensation for loss of job because, as you know, she could have been lawfully dismissed just by giving the correct notice due to her having less than two years service.

Lindsey614614

She was employed as a P A carer in a private house.
The employer required the carers to send / read texts emails/ post etc. Always had permission.
She was asked to see if the other employee had confirmed that they had returned / posted some forms for her the day before. 
This is when she saw the text offering the day to them

wilfred30

Lindsey614614 said:

Hi.
It is my niece.
she left as she also saw a text from employer offered the other day ( so no job ) offered to another employee but they could not start for 3 weeks ..when this came to light she left. So intended to get rid in 3 weeks and even had the nerve to ask her to give notice. she has been to ACAS. and had certificate yesterday . Employer would not engage with early conciliation. claiming contact breach as well as holiday pay owed.

I'm finding this story a little confusing! 

Are you saying that, after seeing the text, she left without giving any notice?

Also, what certificate are you referring to?

Jillanddy

Lindsey614614 said:

Hi.
It is my niece.
she left as she also saw a text from employer offered the other day ( so no job ) offered to another employee but they could not start for 3 weeks ..when this came to light she left. So intended to get rid in 3 weeks and even had the nerve to ask her to give notice. she has been to ACAS. and had certificate yesterday . Employer would not engage with early conciliation. claiming contact breach as well as holiday pay owed.

So she left and gave no notice? On that basis she might have a claim for holiday pay (if she is owed any), but she could be countersued for failing to provide notice! It wasn't the employer who breached the contract, it was your niece. It doesn't matter what she assumed the employer might or might not be doing based on a text that she may have read. She has, based on what you are saying here, shot herself in the foot by breaching her own contract. 

Dr_Crypto

Lindsey614614 said:

Hi.
It is my niece.
she left as she also saw a text from employer offered the other day ( so no job ) offered to another employee but they could not start for 3 weeks ..when this came to light she left. So intended to get rid in 3 weeks and even had the nerve to ask her to give notice. she has been to ACAS. and had certificate yesterday . Employer would not engage with early conciliation. claiming contact breach as well as holiday pay owed.

Looks like she walked off the job. How’s that the employer’s fault? 

Jillanddy

Undervalued said:

Lindsey614614 said:

Hi.
It is my niece.
she left as she also saw a text from employer offered the other day ( so no job ) offered to another employee but they could not start for 3 weeks ..when this came to light she left. So intended to get rid in 3 weeks and even had the nerve to ask her to give notice. she has been to ACAS. and had certificate yesterday . Employer would not engage with early conciliation. claiming contact breach as well as holiday pay owed.

Yes, based on what you say she may well be able to claim wrongful dismissal (i.e. breach of contract). That should yield her pay for the missing hours she was contracted to work plus any holiday pay she is due. She would also have to be allowed to work whatever notice she is entitled to (one week unless contract specifies more) or receive payment in lieu.

What she won't get is any compensation for loss of job because, as you know, she could have been lawfully dismissed just by giving the correct notice due to her having less than two years service.

She wasn't dismissed. She quit without giving notice.