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  • FIRST POST
    • emanddaz
    • By emanddaz 12th Oct 18, 3:45 PM
    • 5Posts
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    emanddaz
    Unfair dismissal?
    • #1
    • 12th Oct 18, 3:45 PM
    Unfair dismissal? 12th Oct 18 at 3:45 PM
    My husband worked for his employer for just over a year. He's got Rheumatoid arthritis and has had many odd days here and there off over that year worked for his employer and one period of a week off with a chest infection. None of these days off ill were paid including the week off. He took 3 of the 4 weeks holiday he was entitled to. In April this year his arthrits started having a flare up and affected him so badly that he was signed off for a month. No SSP was paid.

    He has continued to be signed off to present day, unable to grip and sometimes stand. His employer has paid him nothing.

    Husband contacted HMRC employees helpline who advised ask why no SSP was forthcoming. They contacted employer, who adv he'd rather fold the business than pay anyone SSP. Back and forth via us (with advice from ACAS), HMRC and employer. Finally received SSP1 form from employer (with 3 months sicknotes) stating that he wasn't paying SSP as husband had been laid off day before SSP was payable! Further emails, all very civil, to employer (with ACAS advice) requesting copy of the correspondence with reasons for dismissal. Letter recvd dated April (Word creation date of June 2018) advising he's been sacked because he didn't adhere to sickness call in procedures and didn't advise of change in his health or medication. Husband has never received a contract, but has always contacted (via WHatsApp or landline) when going to be off sick.

    ACAS early conciliation told by employer that he warned husband numerous times (but actually never has, either verbal or written) and that was why he was sacked. Also said husband was on 0 hours contract and only worked couple of days a week. We have payslips averaging 140 hours per month over last year.
    Now heading for Employment tribunal. We know that unfair dismaissal is fine after 2 years, but also read that if claiming an unlawful deduction from wages and that caused the dismissal it's also unfair dismissal. Is this right?

    By our thinking husband is entitled to SSP from 4th day off - day received actual letter of dismissal in August 2018, 1 weeks notice pay, accrued holiday for 18-19 until August dismissal date, possibly worth trying for 4th week from last years holiday not taken (as employer said not entitled due to too much time off sick). Also advised by solicitor as not received contract it's worth 2 full weeks wage.
    Advice from anyone gratefully received as this is pretty daunting to be honest!
Page 1
    • Comms69
    • By Comms69 12th Oct 18, 4:30 PM
    • 5,037 Posts
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    Comms69
    • #2
    • 12th Oct 18, 4:30 PM
    • #2
    • 12th Oct 18, 4:30 PM
    My husband worked for his employer for just over a year. - Unfair dismissal claims require two years service. He's got Rheumatoid arthritis and has had many odd days here and there off over that year worked for his employer and one period of a week off with a chest infection. None of these days off ill were paid including the week off. He took 3 of the 4 weeks holiday he was entitled to. In April this year his arthrits started having a flare up and affected him so badly that he was signed off for a month. No SSP was paid. - why was SSP not paid?

    He has continued to be signed off to present day, unable to grip and sometimes stand. His employer has paid him nothing. - he has been off for 6 months?

    Husband contacted HMRC employees helpline who advised ask why no SSP was forthcoming. They contacted employer, who adv he'd rather fold the business than pay anyone SSP. - doesn't sound like a very good employer... Back and forth via us (with advice from ACAS), HMRC and employer. Finally received SSP1 form from employer (with 3 months sicknotes) stating that he wasn't paying SSP as husband had been laid off day before SSP was payable! Further emails, all very civil, to employer (with ACAS advice) requesting copy of the correspondence with reasons for dismissal. Letter recvd dated April (Word creation date of June 2018) advising he's been sacked because he didn't adhere to sickness call in procedures and didn't advise of change in his health or medication. - did he? It doesn't matter too much, but just curious? Husband has never received a contract, but has always contacted (via WHatsApp or landline) when going to be off sick. - but what is the policy?

    ACAS early conciliation told by employer that he warned husband numerous times (but actually never has, either verbal or written) and that was why he was sacked. Also said husband was on 0 hours contract and only worked couple of days a week. We have payslips averaging 140 hours per month over last year. - if it's a zero hours contract the employer MUST have one in writing, at least that is my understanding.
    Now heading for Employment tribunal. We know that unfair dismaissal is fine after 2 years, but also read that if claiming an unlawful deduction from wages and that caused the dismissal it's also unfair dismissal. Is this right? - Unlawful dismissal is automatically unfair dismissal. BUT I cant see you proving unlawful dismissal. Is his arthritis so bad as to be considered a disability?

    By our thinking husband is entitled to SSP from 4th day off - day received actual letter of dismissal in August 2018, 1 weeks notice pay, accrued holiday for 18-19 until August dismissal date, possibly worth trying for 4th week from last years holiday not taken (as employer said not entitled due to too much time off sick). Also advised by solicitor as not received contract it's worth 2 full weeks wage. - But none of that is an unfair / unlawful dismissal claim. You are claiming money owed. (except for the contract, that's a red herring)
    Advice from anyone gratefully received as this is pretty daunting to be honest!
    Originally posted by emanddaz


    If you are just claiming money owed, then that's straight forward.


    But what evidence do you have?
    • sangie595
    • By sangie595 12th Oct 18, 4:45 PM
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    sangie595
    • #3
    • 12th Oct 18, 4:45 PM
    • #3
    • 12th Oct 18, 4:45 PM
    Unfair dismissal for asserting a statutory right (to be paid SSP) does not require two years service. However, proving that is the reason he was dismissed is a different matter. If he'd rather fold the business than pay sick pay, it's probably moot - I doubt there will be an employer to pursue within a week or so. If the business folds, there will be no case.

    To be honest, and I say this as someone who has severe arthritis, if his absence record is that bad, it is going to be difficult to evidence that the employer didn't dismiss on those grounds. The employer does appear to be a nightmare, but in the end, all employers employ people to be in work and not off sick - whether they pay them sick pay or not. A small employer (and this sounds like one) can get away with lapses in process, so if he claimed that he told your husband that his attendance record want acceptable, he may very well get away with that being verbal.
    • emanddaz
    • By emanddaz 12th Oct 18, 5:41 PM
    • 5 Posts
    • 1 Thanks
    emanddaz
    • #4
    • 12th Oct 18, 5:41 PM
    • #4
    • 12th Oct 18, 5:41 PM
    With regards to automatic unfair dismissal, he refused to pay SSP and HMRC have it noted that he said that he wouldn't pay SSP. If we need the evidence from HMRC we can ask the tribunal to request it. We have the electronic date stamp to show that he backdated a letter of dismissal and telephone records showing numerous contacts before the start of the work day. He's not a good employer but he is a solvent company that is doing OK for work. He's just an !!!! who thinks he can get away with treating people badly. He has had numerous tribunal against him but has always settled before it's gotten to court.

    So, to be clear, we may be able to go for automatic unfair dismissal but not unfair dismissal, based on the unlawful deduction from wages for not paying him SSP, notice pay etc.
    • emanddaz
    • By emanddaz 12th Oct 18, 5:44 PM
    • 5 Posts
    • 1 Thanks
    emanddaz
    • #5
    • 12th Oct 18, 5:44 PM
    • #5
    • 12th Oct 18, 5:44 PM
    Unfair dismissal for asserting a statutory right (to be paid SSP) does not require two years service. However, proving that is the reason he was dismissed is a different matter. If he'd rather fold the business than pay sick pay, it's probably moot - I doubt there will be an employer to pursue within a week or so. If the business folds, there will be no case.

    To be honest, and I say this as someone who has severe arthritis, if his absence record is that bad, it is going to be difficult to evidence that the employer didn't dismiss on those grounds. The employer does appear to be a nightmare, but in the end, all employers employ people to be in work and not off sick - whether they pay them sick pay or not. A small employer (and this sounds like one) can get away with lapses in process, so if he claimed that he told your husband that his attendance record want acceptable, he may very well get away with that being verbal.
    Originally posted by sangie595
    He's never had a warning or anything like that from his employer but the backdated dismissal letter says he failed to adhere to sickness procedures but having never had a contract setting those out, I'm not sure his employer can enforce that as a reason.
    • FBaby
    • By FBaby 12th Oct 18, 6:17 PM
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    FBaby
    • #6
    • 12th Oct 18, 6:17 PM
    • #6
    • 12th Oct 18, 6:17 PM
    Can't comment on the main issue but the past statement isn't correct. The employer is responsible for making policies available. They don't have to hand them or put them in contract. If your dh never asked for it, then the employer is not in the wrong and can still expect the policy to be adhered to.

    Also the reason for dismissing him is irrelevant anyway.
    • sangie595
    • By sangie595 12th Oct 18, 6:54 PM
    • 5,515 Posts
    • 9,477 Thanks
    sangie595
    • #7
    • 12th Oct 18, 6:54 PM
    • #7
    • 12th Oct 18, 6:54 PM
    With regards to automatic unfair dismissal, he refused to pay SSP and HMRC have it noted that he said that he wouldn't pay SSP. If we need the evidence from HMRC we can ask the tribunal to request it. Tribunals do not obtain evidence. You must. And I doubt HMRC would breach protocol and data security by providing you with a copy of communications that did not involve you.We have the electronic date stamp to show that he backdated a letter of dismissal No. You have evidence of the date you claim it was created. Such things can be faked. Besides which, as I said, dismissal does not have to be in writing. and telephone records showing numerous contacts before the start of the work day I phoned you 20 times in the last half hour - doesn't prove a thing, does it? . He's not a good employer but he is a solvent company that is doing OK for work You are being naive - the company may be solvent now. It could be a solvent different company by next week! . He's just an !!!! who thinks he can get away with treating people badly. He has had numerous tribunal against him but has always settled before it's gotten to court. And maybe he will again. But you can't be sure of that, and you'll probably not get anything more than the claimed SSP.

    So, to be clear, we may be able to go for automatic unfair dismissal but not unfair dismissal, based on the unlawful deduction from wages for not paying him SSP, notice pay etc.
    Originally posted by emanddaz
    Automatic unfair dismissal is nothing different from unfair dismissal - it simply means that you may be able too short cut the circuit if you can prove an automatic cause. Do not be complacent. What you think you can prove and what you can actually prove are often very different things.
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