Wrongful Dismissal?

[SoapAndFury]

I am hoping that someone is able to help with some legal advice as my head is spinning right now.

Unfortunately I know that my upset doesn't count for much when it comes to the legalities, but I think I may have grounds for wrongful dismissal and I'd really appreciate it if anyone can advise if I may have grounds, or not.

Appreciate any advice! Some key info below:

• My employment was terminated on Friday
• Smallish privately owned company
• I have been with the company for 8 months
• Full time contract
• Passed 3 month probation
• My recent peer and management reviews came back positive. Some areas for improvement, but in a "you're doing great, this could make it even better" kind of way

Whilst I have had no formal warnings or disciplinary action, for the past few months, the majority of interactions with my boss have been him telling me that I'm not good enough, but without any specifics about what I'm not doing right. Frankly I've felt bullied and gaslit but needed the job and kept forging on best I could.

My boss is aware I have ADHD, and I have said that I'm sorry to keep frustrating him and that perhaps my ADHD is impacting my communication.

I'd asked a couple of times for specific areas to improve on so that I know what is needed and can measure improvements. But nothing was ever provided. Feedback from peers and clients has always been positive.

• On Friday I was asked to a call with my boss
• I was told that I wasn't good enough at my job and he was thinking about firing me, he asked me if I had any reasons to change his mind
• He said that he would think about things for a few hours and let me know. This was all verbal / not recorded
• My anxiety went through the roof and I actually threw up after the call. I tried to work but an hour or so later I emailed my boss to say that our call had left me unable to continue working due to stress
• I received an email to my personal address around 30 mins later to say that before I sent my message, he had already decided that I could not meet the core objectives of my role and he was terminating my employment "with effect from today" and that HR would be in contact "early next week with confirmation of details and next steps"
• No other info given
• I was immediately removed from company systems and my colleagues emailed to say I was no longer with the company (I know this because I was contacted by colleagues expressing their shock)

My contract says:

"After the successful completion of your probationary period, in the event that the Employer wishes to terminate your Employment, it will be required to give to you:

During the first 4 years of service, one months’ notice"

BUT it also says:

"The Employer may choose, in its discretion, to terminate your employment at any time (including during any period of Garden Leave) with immediate effect, by notifying you in writing that it is doing so and that a payment in lieu of your notice entitlement (or balance thereof), calculated at basic salary only, (less statutory deductions) will be paid to you within 28 days after the termination date. Payment in lieu of notice shall not include any element in relation to any other payments or benefits."

AND:

"Nothing in these Terms and Conditions prevents the Employer from terminating your employment summarily without notice and with no liability to make any further payment to you in the event of any serious breach by you of the terms of your Employment and including (but not limited to) the following situations:

...Where you are, in the reasonable opinion of the Employer, negligent and incompetent in the performance of your duties"

I think it looks like the contract has been breached as though HR will contact me next week, at this point I've just been told im fired with immediate effect.

On the other hand there is a clause to say that notice is not needed if the employer thinks I've been incompetent. This is effectively what he's told me he thinks, but as I've had no formal warnings etc, and in fact my recent peer review (in which he took part), states the opposite, can he legally claim that?

I plan to speak to ACAS on Monday, but my anxiety is sky high and I would be grateful for any advice I can get. Thank you.

Your employer can only dismiss you without notice in cases of gross misconduct. That doesn't mean they have to allow you to work your notice, but they must pay you. Failing to meet the required standard for a role is not gross misconduct. They will have to pay you your notice pay. If they don't, that is wrongful dismissal. Unlike unfair dismissal, your protection for wrongful dismissal starts from day one.

If HR tell you that they are going to pay you one month's pay in lieu of notice, they are in the clear and there is nothing you can do. However, if they don't intend to pay that, you have a claim on the information you've posted here.

Until you have two years' continuous service, an employer can fire you for almost any reason, providing they are not discriminating against you based on certain protected characteristics (race, disability, pregnancy etc).

It seems like you accept that this is not the case, and that your manager's issues with your ability to do the job is the reason for letting you go, even if you don't necessarily agree with them.

From what you've said, your employer has acted poorly, but on the face of things they're not in breach. Your boss has told you that he's letting you go, and why, and that HR will be in touch after the weekend to tie things up.

That they've removed you from their systems and informed your colleagues tells you that they don't want you to work your notice period. Again, if your manager has such an issue with your ability, that would make sense. When HR contact you next week, they should confirm your pay in lieu of notice, any leave they owe you/you owe them, returning property etc. They should pay you any monies owed within 28 days.

I would be surprised if they were letting you go with no notice/pay (gross incompetence/negligence) without something specific and substantial having happened. This would constitute wrongful dismissal, which you are protected from.

Even with less than two years service and no right to an employment tribunal for unfair dismissal, your company may allow you to appeal this decision to them internally. You should have a copy of their disciplinary procedure.

You mention ADHD - Has this been formally diagnosed? Do you feel that it has impacted your performance and if so, have you asked for reasonable adjustments to help with this? If you have, and the company has not made efforts to make them, you may have grounds for unfair dismissal based on a protected characteristic - disability. From what you've posted though, this doesn't appear to be the case.

If you want to fight this, it's likely your only option, but you should take professional advice before going down that path.

Thank you for this. To clarify, though no notice was given and no formal performance issues were raised prior, i've not got any recourse as im under 2 years service?

And in the dismissal email no information was given to me about pay in lieu of notice (per my contact), but if I get contacted by HR giving me that information retrospectively, that fulfils their contractual obligation?

And lastly, is there any likelihood of proving an unfair dismissal on grounds of disabiloty discrimination? I truly believe my ADHD qualifies as a disability in the legal dedinition and directly (or indirectly) played a part in my dismissal.

I had raised my ADHD as an area of concern a few times as I thought I may not be communicating with my boss effectively due to my condition and that this was causing his frustration.

I had asked for support and some structured targets to work with. I was told he would help and that he would think about the best way to do this, but instead, I've now been fired.

Whilst I've been treated awfully from a moral standpoint I don't know if I have any legal standing. Thank you

Thank you for your reply! And I have had a formal diagnosis.

Regarding the performance, is it a valid legal reason considering no formal issues with my work had been raised and my recent peer / performance reviews have stated i am doing well?

Sadly OP you have very little (almost no) legal protection under 2 years employment. Your only real bet is if you have been diagnosed with adhd formally as then there will be grounds for discrimination as it will found as a disability.

There are no win no fee companies for this kind of thing.

https://www.scope.org.uk/advice-and-support/if-you-are-being-managed-out-of-your-job?gad_source=1&gad_campaignid=20292776387&gbraid=0AAAAADrhH8G5m1TMRo0i4CE--EcPALQyS&gclid=Cj0KCQjwu7TCBhCYARIsAM_S3NjaOOuAus3o0aY8Us6fqeXh1djnfpDEkFnGJ23jgQQlBMYqhCvvshsaAqLSEALw_wcB#Probation-period-click This might help you. I think you would have an excellent case here.

Thank you so much, I'll have a proper read through in the morning. Going to try and get some sleep now. Really appreciate everyone taking the time to reply.

Thank you for this. To clarify, though no notice was given and no formal performance issues were raised prior, i've not got any recourse as im under 2 years service?

Correct. As long the reason for letting you go is not a protected characteristic. They could let you go because they simply don't like you, or don't think you 'fit in'.

And in the dismissal email no information was given to me about pay in lieu of notice (per my contact), but if I get contacted by HR giving me that information retrospectively, that fulfils their contractual obligation?

Technically as long as they pay you what they owe, they've fulfilled their end. As above, they don't even need to put the reasons for letting you go in writing until you've been there two years (although most employers will); doing it orally is enough.

If you're concerned about pay and they don't put it in writing, ask HR to confirm your final pay and the date it will be paid when you speak to them.

And lastly, is there any likelihood of proving an unfair dismissal on grounds of disabiloty discrimination? I truly believe my ADHD qualifies as a disability in the legal dedinition and directly (or indirectly) played a part in my dismissal.

I had raised my ADHD as an area of concern a few times as I thought I may not be communicating with my boss effectively due to my condition and that this was causing his frustration.

I had asked for support and some structured targets to work with. I was told he would help and that he would think about the best way to do this, but instead, I've now been fired.

Your condition could be classified as a disability under the Equality Act. It must have lasted, or be likely to last, 12 months or be permanent. This is key: It must also have "substantial adverse effects" on your daily life, including your ability to work and live independently. These effects cannot be 'trivial'.

Your employer has a duty to make reasonable adjustments.

Gather any evidence you have of raising this (emails/messages/dates of meetings etc) for when you speak to ACAS/take legal advice.

Regarding the performance, is it a valid legal reason considering no formal issues with my work had been raised and my recent peer / performance reviews have stated i am doing well?

Unfortunately yes. Don't get me wrong, it's odd and unfair, but you don't have protections from that until you hit two years.

They don’t need to give you any notice of the dismissal meeting @SoapAndFury. However, you do need to be paid your notice as per your contract if they are short service dismissing you.

it sounds to me like this has been done and that you will be paid in lieu of your notice.

Thank you all again, I'll speak to ACAS and see what they advise. I'd love to pursue this further but equally my mental health has suffered and it might not be worth the stress if it's not going to be easy to find in my favour.

It’s such a horrible way they have gone about it and will be awful for your confidence. I’m sorry it’s happened OP. The boss sounds truly awful. Hope you can dust yourself off in a few days and put it behind you.

Sorry you’re going through this OP.

Your ADHD is a protected characteristic and therefore you have recourse to pursue a claim, particular as you’d raised it as a concern and no help was forthcoming.

ACAS will be very helpful to you and may suggest early mediation to help you negotiate a settlement (due to your protected characteristic/disability discrimination).

Good luck.

I know this was a shock but seriously do you want to work for a company that they put someone under so much pressure that they were sick. You sound better out of it.

They definitely owe you your notice, unless they have a very specific and documented event that constitutes negligence, not just general poor performance. But as long as you are paid that it will satisfy the notice clause, regardless of whether you were told about it by your boss. There is no legal requirement for them to put an effective performance improvement plan in place with SMART targets ect. Morally, yes, but legally this won’t save you.

The ADHD could be an angle as disability discrimination has no 2 year requirement, but after 8 months employment with several months of documented poor performance it’s going to be very hard to prove. Unless you asked them for specific reasonable adjustments due to your ADHD and they refused, I’d be very wary of going down that road. It will be very stressful and you are unlikely to get very much compensation even if you succeed due to the short term of your employment, so I’d focus your energy on finding another role.

So, an update...I sent an email on Sunday to appeal the dismissal (as per ACAS advice). Yesterday I received an email confirming that they agreed to an appeal hearing.

I received an email earlier today letting me know when my appeal hearing will be (next Tuesday).

However after that, I received another email with a "without prejudice" offer. This amounts to 2 months take home pay.

I would very much appreciate some advice on how to proceed.

I am aware that they did not need to offer anything, but i was made redundant last year and it took me a few months to find this job.

The toll the last few months have taken on my mental health is not insignificant either and I could do with some time to build my confidence and resilience back before jumping into full time job hunting.

If I countered the offer by asking for an additional one months pay, would that put me in a bad position if they refuse?

And @Avidreader12 , whilst I'd never choose to be in this position, being incredibly stressed but having a salary coming in vs the stresses of unemployment with bills to pay is not something I want to revisit either.

Genuinely appreciate everyone who has commented. People taking time to reply to me has meant a lot.

The fact they have made this offer suggests that they want to get rid of you, but they are concerned that you might take them to tribunal. It sounds like they intend to offer you a settlement agreement where you give up the right to take them to tribunal in return for them paying you some compensation. If that is the case, they should offer to pay for you to get some legal advice as, without it, the agreement is not binding on you.

Regardless of whether they are paying, you should take proper legal advice before deciding what to do. That will tell you whether you have a claim and, if so, how much compensation you are likely to receive. That will certainly be more than they will offer, so you need to decide whether the stress of going through tribunal is worth it. It will also give you a better basis for negotiating their offer than simply going back and asking for an additional month.

The offer has been made without prejudice. That means that neither they nor you can refer to this offer if the case ends up going to tribunal. If you ask them for more and they refuse, it won't affect your position in tribunal. Most employers start with a low offer, so they will probably go up if you ask for more. There is a small risk that your employer may simply withdraw the offer if you ask for more, leaving you to take them to tribunal to get anything. However, it is unlikely this will happen.

Personally I think it’s reasonable to go back and ask for a counter offer.

Something along the lines of ‘Whilst I appreciate the offer unfortunately I don’t feel this is sufficient to make up for the job loss, stress & hardship caused. I have to consider the time it will take to find another job, monetary loss of benefits/bonus & the mental health impact of the wrongful dismissal. With this in mind at this stage I will need to go ahead with the formal process unless you are able to increase the offer.

On a separate date I will looking to bring my union representative to the meeting so please give me a few dates/times so I can confirm availability.’

You can join a union now if you don’t have one!

Ultimately though it’s entirely up to you and your ability to deal with the stress.

I'm so sorry this has happened to you OP, it's horrible, I've been there.
Unfortunately a union is very unlikely to help you with free advice unless you've been a member for a set amount of time, (3 months usually).
But they have a made a without prejudice offer. So now you are in a position to negotiate an exit. Ask for more money.
A pp was right, your employer is obliged to let you seek legal advice, in my experience I could not sign or accept the offer from my employer without a lawyer seeing the offer and advising me. There are plenty of lawyers who do these negotiations all day every day. Just Google. You can try no win no fee, I went with one who needed paying. They negotiated me a good financial package, supported me and advised I hold my nerve, and I ended up with more money than I would have got, even after paying them.
Get through this and then look forward to your future. Your boss sounds like my old boss! You are best out of this situation. They've behaved badly. Get a pay off then move on. Good luck!

Negotiating the offer is absolutely fine. Yes, ask for another month plus a contribution to legal fees and a factual reference with no mention of performance issues. And do take the legal advice! I really hope you can find a role that values you better.

If they don't pay you your contractual notice (plus any accrued holiday pay) you can claim illegal deduction of wages via ET. It's a simple enough process.
If they don't pay you, write a grievance email specifying what you believe they owe you, tell them they have 10 days to pay you after which time you will submit a claim for illegal deduction of wages/non payment of accrued and untaken statutory holiday entitlement.

Just an update for those who were kind enough to comment...

I managed to negotiate my initial settlement offer up a bit, and am now a lady of leisure.

Whilst I need to get cracking with the job hunt, having had some time off these past few weeks away from the horrible experience at work (and the comfort of knowing I have a bit of a financial cushion), has done wonders for my mental health.

Thanks again to all who took the time to respond.

Well done! Really glad you at least got a decent notice payment, and I really hope your job search is successful. Meanwhile enjoy a break