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  • FIRST POST
    • mumpy
    • By mumpy 2nd Mar 18, 5:38 PM
    • 6Posts
    • 1Thanks
    mumpy
    Urgent help needed if at all possible?
    • #1
    • 2nd Mar 18, 5:38 PM
    Urgent help needed if at all possible? 2nd Mar 18 at 5:38 PM
    Hello, I'm just wondering if anyone can help us? My 21yr old chef son, was head hunted for a year and a half to build and open a restaurant from scratch. He finally agreed (he was happy and in a good job) to help the entrepeneur (who had absolutely no experience in hospitality whatsoever), and a month ago my son's and his boss' dreams came to fruition.
    Two weeks later my son was taken out side of the restaurant and told by his boss with his (silent) girlfriend by his side, that he was letting my son go. My son had given his all for a year, working very long hours to finalise everything. He was given no warnings or anything. His position in the company was Executive Head chef. He brought all the chefs in and led/trained them. Everything was a success as far as my son could see, but his boss told him on the day he dismissed him and when he asked why he was being let go, that it was because he wasn't leading the team right.
    Josh (my son) emailed his boss the next day asking for specific reasons for his dismissal, the reply he received was the contract that was drawn up last May (2017) stating that he was on 'garden leave'.
    Two weeks later, Josh emailed his boss again, asking again for reasons, in the form of an official email, advised by ACAS, asking his boss to outline specific reasons for dismissal etc etc. The next day, which was the day BEFORE Josh's salary for the month was due to go into his account, his boss replied citing gross misconduct as per the terms in the '....contract and the staff handbook' and stating there had been an internal investigation.
    Josh thinks this was done to preclude any salary being paid. There was no misconduct, gross or otherwise.

    Please, does anyone know if he, (Josh) stands any chance of suing this man. He used Josh completely and utterly and then just threw him away. Emotive language, I know, but nevertheless it is a fact. We all tried to alert Josh to the possibility that this man may not be all he purports to be, and had a feeling that he may do exactly what he has done.
    Is there any way for him to fight his case?

    Thank you so much for any help or advice offered at all.
Page 1
    • TELLIT01
    • By TELLIT01 2nd Mar 18, 6:05 PM
    • 4,887 Posts
    • 5,220 Thanks
    TELLIT01
    • #2
    • 2nd Mar 18, 6:05 PM
    • #2
    • 2nd Mar 18, 6:05 PM
    The owner of the restaurant clearly knows employment law. Unfortunately your son has absolutely no chance of winning if he tries to sue because, as he has been employed by the company for less than 2 years, he has very limited employment rights. He can have his contract terminated and no reason given when he has less then 2 years employment.
    On the face of it the employer has behaved very badly but not illegally.
    Depending on the amount of wages outstanding he might want to go through the Small Claims court to get that.
    • Diamandis
    • By Diamandis 2nd Mar 18, 6:35 PM
    • 264 Posts
    • 427 Thanks
    Diamandis
    • #3
    • 2nd Mar 18, 6:35 PM
    • #3
    • 2nd Mar 18, 6:35 PM
    If they're saying he wasn't leading the team right then they weren't happy with his performance. He should be paid for any hours worked and a week PILON unless they have said it was gross misconduct, he should write to the company in the first instance to request any unpaid wages.
    • mumpy
    • By mumpy 2nd Mar 18, 6:35 PM
    • 6 Posts
    • 1 Thanks
    mumpy
    • #4
    • 2nd Mar 18, 6:35 PM
    • #4
    • 2nd Mar 18, 6:35 PM
    Thank you very much for replying, Tellit. Really appreciate it. I think the smalls claims court may be the only way. It's looking bleak. Very nasty man this guy is. Weve just found out today that he has now just sacked the soux chef, who is expecting a child.
    • mumpy
    • By mumpy 2nd Mar 18, 8:03 PM
    • 6 Posts
    • 1 Thanks
    mumpy
    • #5
    • 2nd Mar 18, 8:03 PM
    • #5
    • 2nd Mar 18, 8:03 PM
    Thank you Diamandis. His boss didn't give any real reason, he just wanted him out so he wouldn't have to pay him. He decided to accuse him of gross misconduct hours before he was due to pay him his month's salary.
    • Ja7188
    • By Ja7188 3rd Mar 18, 9:38 AM
    • 153 Posts
    • 163 Thanks
    Ja7188
    • #6
    • 3rd Mar 18, 9:38 AM
    • #6
    • 3rd Mar 18, 9:38 AM
    Being dismissed for gross misconduct surely does not give the company the right not to pay him for the hours he worked, plus his contractual notice period? Given that he was let go for no real reason, with gross misconduct only cited *after* he'd left, I wonder if this actually counts as dismissal for gross misconduct...

    If the employer really does know the rules, I'd guess that they'll pay the outstanding amount upon being challenged.
    Last edited by Ja7188; 03-03-2018 at 9:42 AM.
    • TBagpuss
    • By TBagpuss 3rd Mar 18, 12:19 PM
    • 6,487 Posts
    • 8,415 Thanks
    TBagpuss
    • #7
    • 3rd Mar 18, 12:19 PM
    • #7
    • 3rd Mar 18, 12:19 PM
    Being dismissed for gross misconduct surely does not give the company the right not to pay him for the hours he worked, plus his contractual notice period? Given that he was let go for no real reason, with gross misconduct only cited *after* he'd left, I wonder if this actually counts as dismissal for gross misconduct...

    If the employer really does know the rules, I'd guess that they'll pay the outstanding amount upon being challenged.
    Originally posted by Ja7188
    If he was dismissed for gross misconduct he would be entitled to be paid for the hours he has worked but I don't think he would be entitled to be paid a notice period. I think he would be entitled to be paid to the date he was noticed he had been dismissed.
    • Ja7188
    • By Ja7188 3rd Mar 18, 1:34 PM
    • 153 Posts
    • 163 Thanks
    Ja7188
    • #8
    • 3rd Mar 18, 1:34 PM
    • #8
    • 3rd Mar 18, 1:34 PM
    If he was dismissed for gross misconduct he would be entitled to be paid for the hours he has worked but I don't think he would be entitled to be paid a notice period. I think he would be entitled to be paid to the date he was noticed he had been dismissed.
    Originally posted by TBagpuss
    Yes - but I'm wondering whether the fact that gross misconduct was only cited *after* he'd left the organisation, as opposed to being cited at the point he left, makes a difference. This may well just clutching at straws in reality, but I wonder if it's worth looking into...

    Also, he was told he was on garden leave, which surely implies that he was being paid for a notice period?

    Furthermore, surely any 'investigation' would be carried out before dismissing, not after?
    • Elle Woods
    • By Elle Woods 4th Mar 18, 9:44 AM
    • 19 Posts
    • 17 Thanks
    Elle Woods
    • #9
    • 4th Mar 18, 9:44 AM
    • #9
    • 4th Mar 18, 9:44 AM
    If your son goes to the small claims court, he will have to pay issue and hearing fees. But if he deals with this in the Employment Tribunal then there are currently no fees to pay.

    I think the claims would be for the unpaid wages and wrongful dismissal. He can’t claim for unfair dismissal because as others have said he has been employed for less than 2 years. But wrongful dismissal is your son claiming he was dismissed without being paid notice when he was entitled to notice pay. The employer would have to justify why they believe he was guilty of gross misconduct. It sounds like he may find that difficult to do from the information provided here.

    The deadline would be three months less a day from the date that his dismissal took effect to bring the claims in an employment tribunal. First step would be for your son to contact Acas and notify them that he is considering bringing a claim against his former employer. The parties can then choose to go through settlement discussions via Acas or not. If no settlement is reached Acas will provide your son with an early conciliation certificate; you need this before bringing a claim because there’s a box to enter the EC certificate number into.

    Given the sums are likely to be relatively low I wouldn’t suggest paying for representation. Depending on where you live there may be free advice or representation available. The Free Representation Unit deals with cases in and around London and Nottingham, for example. But it is absolutely possible for your son to represent himself.
    • steampowered
    • By steampowered 4th Mar 18, 8:13 PM
    • 2,492 Posts
    • 2,409 Thanks
    steampowered
    He should claim full pay for his notice period. Start with a formal 'letter before action' asking for the amount outstanding to be settled within 14 days.

    If the amount is not paid within those 14 days, issue a claim the next day - either in employment tribunal or small claims court.

    Personally, I would issue the claim in small claims court rather than in employment tribunal. Small claims is a simpler process and doesn't involve mucking about with ACAS. But small claims does have a fee (ultimately reclaimable from the defendant), so there are swings and roundabouts.

    While it is true that you don't get notice pay if you are dismissed for gross misconduct, you would need to do something really quite seriously wrong (e.g. stealing from the employer) to be guilty of gross misconduct.

    'Leading the team wrong' isn't gross misconduct. And of course an employer can't put someone on garden leave, and then turn around and change their mind to change the nature of the dismissal several weeks later.
    • Nothanks
    • By Nothanks 4th Mar 18, 11:17 PM
    • 120 Posts
    • 134 Thanks
    Nothanks
    I wouldn't be so quick to right the off the ET route. Pound to a penny the dude is younger than his contemporaries by some margin.

    Equality Act doesn't have to abide by the 2 year rule.
    Anything I post is solely MY OPINION. It never constitutes legal, financial or collective bargaining advice. I may tell you based on information given how I might approach an employment dispute case, but you should always seek advice from your own Union representative. If you don't have one, get one!
    • Comms69
    • By Comms69 5th Mar 18, 11:40 AM
    • 2,970 Posts
    • 2,938 Thanks
    Comms69
    Hello, I'm just wondering if anyone can help us? My 21yr old chef son, was head hunted for a year and a half to build and open a restaurant from scratch. He finally agreed (he was happy and in a good job) to help the entrepeneur (who had absolutely no experience in hospitality whatsoever), and a month ago my son's and his boss' dreams came to fruition.
    Two weeks later my son was taken out side of the restaurant and told by his boss with his (silent) girlfriend by his side, that he was letting my son go. My son had given his all for a year, working very long hours to finalise everything. He was given no warnings or anything. His position in the company was Executive Head chef. He brought all the chefs in and led/trained them. Everything was a success as far as my son could see, but his boss told him on the day he dismissed him and when he asked why he was being let go, that it was because he wasn't leading the team right.
    Josh (my son) emailed his boss the next day asking for specific reasons for his dismissal, the reply he received was the contract that was drawn up last May (2017) stating that he was on 'garden leave'.
    Two weeks later, Josh emailed his boss again, asking again for reasons, in the form of an official email, advised by ACAS, asking his boss to outline specific reasons for dismissal etc etc. The next day, which was the day BEFORE Josh's salary for the month was due to go into his account, his boss replied citing gross misconduct as per the terms in the '....contract and the staff handbook' and stating there had been an internal investigation.
    Josh thinks this was done to preclude any salary being paid. There was no misconduct, gross or otherwise.

    Please, does anyone know if he, (Josh) stands any chance of suing this man. He used Josh completely and utterly and then just threw him away. Emotive language, I know, but nevertheless it is a fact. We all tried to alert Josh to the possibility that this man may not be all he purports to be, and had a feeling that he may do exactly what he has done.
    Is there any way for him to fight his case?

    Thank you so much for any help or advice offered at all.
    Originally posted by mumpy
    not a chance, he worked there for less than 2 years.


    He is entitled to wages for hours worked, wages for notice or in lieu of notice and any unpaid holiday leave
    • Comms69
    • By Comms69 5th Mar 18, 11:42 AM
    • 2,970 Posts
    • 2,938 Thanks
    Comms69
    I wouldn't be so quick to right the off the ET route. Pound to a penny the dude is younger than his contemporaries by some margin.

    Equality Act doesn't have to abide by the 2 year rule.
    Originally posted by Nothanks
    This is nothing to do with age, why give false hope?
    • mumpy
    • By mumpy 5th Mar 18, 2:23 PM
    • 6 Posts
    • 1 Thanks
    mumpy
    If your son goes to the small claims court, he will have to pay issue and hearing fees. But if he deals with this in the Employment Tribunal then there are currently no fees to pay.

    I think the claims would be for the unpaid wages and wrongful dismissal. He can’t claim for unfair dismissal because as others have said he has been employed for less than 2 years. But wrongful dismissal is your son claiming he was dismissed without being paid notice when he was entitled to notice pay. The employer would have to justify why they believe he was guilty of gross misconduct. It sounds like he may find that difficult to do from the information provided here.

    The deadline would be three months less a day from the date that his dismissal took effect to bring the claims in an employment tribunal. First step would be for your son to contact Acas and notify them that he is considering bringing a claim against his former employer. The parties can then choose to go through settlement discussions via Acas or not. If no settlement is reached Acas will provide your son with an early conciliation certificate; you need this before bringing a claim because there’s a box to enter the EC certificate number into.

    Given the sums are likely to be relatively low I wouldn’t suggest paying for representation. Depending on where you live there may be free advice or representation available. The Free Representation Unit deals with cases in and around London and Nottingham, for example. But it is absolutely possible for your son to represent himself.
    Originally posted by Elle Woods

    Thank you very much for this information. It is very helpful Elle. Many thanks.
    • mumpy
    • By mumpy 5th Mar 18, 2:36 PM
    • 6 Posts
    • 1 Thanks
    mumpy
    He is younger by some ten years or so!
    • Comms69
    • By Comms69 5th Mar 18, 2:43 PM
    • 2,970 Posts
    • 2,938 Thanks
    Comms69
    He is younger by some ten years or so!
    Originally posted by mumpy
    it's not relevant. He isn't being sacked for being too young.
    • steampowered
    • By steampowered 5th Mar 18, 8:37 PM
    • 2,492 Posts
    • 2,409 Thanks
    steampowered
    The ET does deal with straightforward wages owed/notice pay claims.

    There is no need to bring age discrimination into this. You only need to prove discrimination if you are bringing a discrimination claim!!!!
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