Dismissed without warning 1 yr 11 months into employment, end date of employment 3 mnths later

NewLeaf1986

Hi Guys,

Anyone with knowledge of the nuance of the law in respect of the two-year timeframe would be very much appreciated.

My other half, who has been with his employer for one year and eleven months, during which time he has received two promotions and pay raises, and received no warnings or disciplinary action, performing admirably during the time with them, walked into work the other morning to be dismissed without warning, process, or explanation other than "You're a bit chaotic / not a good fit".

This in and of itself seems like a completely contradictory statement, as someone who isn't a good fit wouldn't have passed their probation first time around, been promoted twice, and been given two promotions.

Now I understand that within the first two years of a permanent contract the employer can technically dismiss an employee without a solid reason or process having been followed, however the employer has provided 90 days notice as per the terms of the employment contract, which brings the end date of his employment with them over the two year boundary.

As he has it in writing from HR that the reason for leaving is "Dismissal", and also has it in writing that his end date of employment will be over the two year boundary, are his employer bang to rights in the sense that they in fact did have a legal / regulatory obligation to follow a formal disciplinary and warning procedure prior to dismissal?

He has not carried out any acts of misconduct during his employment there, nor have any been alleged to have taken place by the employer. 

TBagpuss

Are they expecting him to work his notice? 

If the actual last day of employment is over the two years then my understanding is that he does have protection BUT would strongly recommend that he speaks to ACAS or Citizens Advice in the first instance (or to his union if he is a member) 

Also, I'd advise (subject to anything different being recommended by an actual employment law specialist) that he doesn't say anything to them about it until he is past the 2 year point , as it's possible that they might be able to give him pay in lieu of notice to brig him under the 2 years when he actually ceases to be employed.

That said, the period of *Statutory* notice is included whether he is required to work it or not (so protections kick in 2 weeks before the actual 2 year anniversary, because the 2 weeks statutory notice takes you over the 2 year point) 

NewLeaf1986

He was given 90 days notice as per the terms of his contract and paid garden leave for the period.

He does have it in writing from HR that his final day of employment will be in June, 2 yrs and 2 months after he commenced employment with the firm. The letter from HR basically said "If we don't hear back from you by lunchtime tomorrow requesting PILON or redundancy we will consider you as having agreed to be placed on 90 day paid garden leave after which your employment will cease due to dismissal, your final day of employment will be x"

Naturally he didn't reply, so that is binding on the employer now I suppose?

TBagpuss

OK, if he is on gardening leave he is still employed. He needs to contact ACAS or an employment lawyer to check his position but as far as I know, the fact they gave notice before the 2 years was up doesn't mean that he doesn't still get he employment rights, so he may then be able to make a claim for unfair dismissal. 

However, he definitely needs to get proper advice to be clear on this as it is fundamental.  

NewLeaf1986

Yeah he's spoken to ACAS and they've advised him to follow the Early Conciliation route as a first port of call, when he notified HR of this they quickly stepped back and said "Oh let's have a meeting first", which he has agreed to, as if nothing else, it helps someone's case to allow the employer every opportunity to right their wrong.

The meeting is this afternoon, he's going to treat it as just a "Getting feelers" meeting with no solid agreements to anything they propose and no solid demands from his side, those will come in writing later. At least, that will be his stance. 

You can't rush perfection, as they say.

Undervalued

The "garden leave" aspect of this is the only thing that confuses the situation.

If they had simply dismissed him and payed PILON for his contractual notice period (3 months), only 1 week (i.e. his statutory notice entitlement) would count in calculating his length of service. So he would be under the magic two years. The law is clear on this point.

However, if he remains employed on "garden leave" technically he can be called back in at any point until the end of the notice period so arguably his total length of employment will be over two years.

Exactly how close is he to the two years? Do they still have time to issue new notice and simply pay PILON?

Most employment contracts reserve the right to terminate immediately and pay PILON. However, if it doesn't then technically PILON is breach of contract! Most often it is a moot point as people are usually quite happy to be paid without having to work! However, if they suffer a disadvantage from PILON, they may be able to claim WRONGFUL dismissal (not unfair dismissal) for which there is no two year qualifying period. However all that would normally gain is the amount by which they were out of pocket.

NewLeaf1986

Undervalued said:

The "garden leave" aspect of this is the only thing that confuses the situation.

If they had simply dismissed him and payed PILON for his contractual notice period (3 months), only 1 week (i.e. his statutory notice entitlement) would count in calculating his length of service. So he would be under the magic two years. The law is clear on this point.

However, if he remains employed on "garden leave" technically he can be called back in at any point until the end of the notice period so arguably his total length of employment will be over two years.

Exactly how close is he to the two years? Do they still have time to issue new notice and simply pay PILON?

Most employment contracts reserve the right to terminate immediately and pay PILON. However, if it doesn't then technically PILON is breach of contract! Most often it is a moot point as people are usually quite happy to be paid without having to work! However, if they suffer a disadvantage from PILON, they may be able to claim WRONGFUL dismissal (not unfair dismissal) for which there is no two year qualifying period. However all that would normally gain is the amount by which they were out of pocket.

Thank you. Yes, they do have time to issue new notice and pay PILON, however we already have it in writing that his end date of employment will be into his 3rd year of service; so any attempt to change something they have already committed to in writing would be, well, an interesting move to say the least.

Undervalued

NewLeaf1986 said:

Undervalued said:

The "garden leave" aspect of this is the only thing that confuses the situation.

If they had simply dismissed him and payed PILON for his contractual notice period (3 months), only 1 week (i.e. his statutory notice entitlement) would count in calculating his length of service. So he would be under the magic two years. The law is clear on this point.

However, if he remains employed on "garden leave" technically he can be called back in at any point until the end of the notice period so arguably his total length of employment will be over two years.

Exactly how close is he to the two years? Do they still have time to issue new notice and simply pay PILON?

Most employment contracts reserve the right to terminate immediately and pay PILON. However, if it doesn't then technically PILON is breach of contract! Most often it is a moot point as people are usually quite happy to be paid without having to work! However, if they suffer a disadvantage from PILON, they may be able to claim WRONGFUL dismissal (not unfair dismissal) for which there is no two year qualifying period. However all that would normally gain is the amount by which they were out of pocket.

Thank you. Yes, they do have time to issue new notice and pay PILON, however we already have it in writing that his end date of employment will be into his 3rd year of service; so any attempt to change something they have already committed to in writing would be, well, an interesting move to say the least.

Interesting maybe but I can't see that it would be unlawful.

Sadly there is no doubt that they could quite lawfully have terminated his employment inside of the magic two years. That could be for any reason that doesn't amount to unlawful discrimination or indeed no reason at all. Passing so called probation or glowing appraisals in the past are irrelevant. Most lawyers would have advised them not to offer a reason. Technically he is entitled to a reason but it is a moot point as there is no practical way of forcing them to provide one.

Arguably, if they terminate now and pay PILON he gains as he can't be called back in to work and he is free to work elsewhere which he couldn't do on garden leave.

Even if he could claim unfair dismissal, with only two years service any payout is likely to be minimal and could easily take a year or more to reach a tribunal if they dig their heels in. Also, tribunal decisions are public records and some potential employers search them and are reluctant to employ those who have claimed. Unfair as that may be it does happen.

To be honest, in any discussions I would concentrate on getting them to agree to give a good reference. Quickly finding another job will dwarf any possible pay out. 

NewLeaf1986

Thanks again! Very useful

Undervalued

NewLeaf1986 said:

Thanks again! Very useful

Cross posted with me adding another paragraph which you may not have seen.

NewLeaf1986

Gotcha, by happenchance it does seem they are at least giving positive references.

A recruiter rather naughtily and in breach of GDPR approach the prior employer for a reference without my other half's consent and advised that they gave a glowing report back of his performance and achievements. Which, TBF, if they gave anything else besides that it would certainly be libellous / defamation, considering he never acted against his contract and made the firm a stupid amount of money in new contracts and market offerings. 

It's honestly completely bizarre this happened at all let alone so suddenly. It all came after he took a week of annual leave during which time it was realised no one else within the organisation is able to competently backfill his precise and nuanced duties in his absence. So the solution to this is to get rid of your single point of failure? 

The logic behind that reasoning is baffling to me.