Employment Law advice - please

[DSM]

I was wondering if there is anyone that can give me some advice on employment law.

I was sacked without good reason, and I am trying to pursue a case of unfair dismissal.

The problem I have, is that you have to have been in employment for over a year.

I began in January 2008, and was sacked in March 2009. However, my contract is dated for August 2008 (which is the date I was first given a contract to sign) and says that my employment began on 1st July.

Does this mean I have officially only been working there since July, and therefore not able to pursue unfair dismissal? Or is the fact that I actually began in January legally viable?

Any information would be greatly appreciated, this is a huge stress at the moment as I am now without income.

Did you sign the contract with a start date of 1 July?

Do you have payslips from Jan-June 2008?

Yes and, yes (but not all)

Payslips will help, I imagine. Suggest you contact ACAS (or a union if you are a member of one).

Sorry your employer is trying to duck their legal responsibilities. Sounds like you are better off out of there in the long run (although obv. being out of work is hellish).

btw, have a look on the ACAS website (or the government's employment law website - all the legislation used to be on www.tiger.gov.uk not sure if it still is) and see if they have cocked up by not giving you a contract for so long. I have a feeling employers should provide a written contract within three months.

Acas, I have been told, will only help if you still work there.

Obviously they have turned out not to be great employers, but I really loved my job, and I am definitely going to struggle to get something for anything close to the money I was on. And I have 2 expensive holidays booked for this year, need to pay for.

If I have a case fir unfair dismissal, would I get much compensation?

It depends on the circs of your case really but you will have to show that you have mitigated you losses (eg so you must sign on for JSA).

Is there any possible doubt over your start date - eg were you doing a temp job and then offered a contract? Did you apply direct or through a recruitment agency?

As you are aware unless you can show that you were an employee for a year (and not just a worker say) then you can't claim unfair dismissal.

In terms of an award it depends on the circs of your case really but you will have to show that you have mitigated your losses (eg so you must sign on for JSA). Is your job effectively redundant or have your employer given you any reason for sacking you? And did they follow the company's disciplinary and dismissal process?

Did you work continuously between January and July? Did you start as an agency worker then move to permanent employment? Did you query the incorrect start date at the time?

What reason did they give for the dismissal? Was there a hearing?

Citizen's Advice Bureau?

I was employed as a full time, permanent manager in January. I wasn't from an agency nor was I on a temporary contract.

The reasons they gave were pathetic.. such as they felt I was too chatty with customers. I spent too much time 'helping out operationally'..

I had no hearings, no disciplinary meetings.

My job was filled by the person under me the day after I was sacked.

ACAS are definitely not just for those still in employment - this kind of thing is right up their street.

If you are saying you have been continuously employed since Jan 08 you are going to have to have a very good explanation for the fact that you signed a contract saying your employment started in July, as I expect that will be the sticking point.

Have you appealed your dismissal? Ring ACAS and talk it through with them, and you should also consider talking to the CAB.

Out of interest, if the reasons they gave were pathetic, what do you think their motivation was?

I signed the contract in July as thats when I was given it. The date was already on it. I did ask at the time, and my then boss told me that it didn't matter.

If I appeal, surely the only outcome would be for my job back? I don't think I would be able to go back now after whats happened.

I have no idea why this happened, all I know is that the company are in a dire financial situation, redundancies are happening all the time, and I also think the new manager (who sacked me, had only been the manager for a month) had a personal dislike for me, and I think this was based on religious beliefs, though this is something I would be completely unable to prove.

The problem is you will find it difficult to bring any kind of unfair dismissal case if you haven't appealed the decision in the first place - you need to have given them reasonable opportunity to put their mistake right.

If they deny your appeal, you can then claim unfair dismissal. Compensation is based on financial loss only and, as LadyMuck pointed out, you are expected to mitigate your losses, i.e. look for alternative employment and sign on for JSA in the meantime. If it goes all the way to tribunal and is successful the actual amount you have lost as a result of the dismissal will be what the compensation is based on.

I don't suppose you asking in writing/email about the incorrect date on your contract and have it in writing about your boss saying it 'doesn't matter' do you...? I see what you're saying, but if their defence is going to be that you don't have long enough service, as it stands the contract will support them, so you'd need any evidence you can gather about the fact that you have in fact been employed continously for more than a year, such as payslips, or any correspondence from them at all really.

Did you ring ACAS?

I have an appointment with Citizens advice next week.

I am not sure how to appeal - who do I do this to? My previous employer directly? How do I do that?

I have looked for alternative employment, I am actively seeking a job.. however there is not much available in my industry at the moment. Can I sign on for JSA? I would really rather not be on the dole, plus the fact that the office is miles away, in a VERY dodgy part of town and I believe you have to go every week to 'sign on'.

I don't know what to do about my contract date, the man who was my boss at the time and countersigned my contract is no longer with the company. I do have payslips to back up the fact that I worked there since January 08, and surely their financial records will show that as well?

You are entitled to contribution based JSA - even though it's only 55 quid, it is yours - you've paid for it. You sign on every fortnight and you can choose your appointment time.

I signed on for JSA once before, a few years ago. They made me apply for all sorts of crap jobs just because they were vaguely linked to my line of work - for example I had to apply for a waitress job, even though I have worked for 11 years as a manager.

Have a look here section all about disciplinary procedures including the basic procedure that must be followed.

Then here about appealing.

You should put in your appeal anything you think they did wrong in dismissing you, especially in terms of not using a fair procedure, but also in terms of it not being a valid reason for dismissal.

Your employer's disciplinary procedure should tell you about appealing but if it doesn't, just write to your manager and/or HR if you have an HR department confirming that you are appealing the decision.

You should put that you have been employed for over a year, mention that you signed a contract stating otherwise under pressure but have payslips and other documentation to prove your service length.

Oh thank you for those links, was really useful.

Would an appeal outcome not simply be to have my job offered back to me? Because as much as I would love my job back, I don't think I could go back under the circumstances.

Am I not better to go to a lawyer and try and make a claim?

Yes, a successful appeal would probably result in your dismissal being revoked. But as I said, you won't be able to claim unfair dismissal without having appealed - the Employment Tribunal would throw it out.

Oh, okay sorry I missed that from before.

So, if I appeal, what happens? Either they admit they were wrong, and offer me my job back (at which point what do I do, refuse it politely and then claim unfair dismissal?) or they try to prove that they were right?

And presumably they will try to do that, so can they bring up any old thing? Do I get a chance to defend myself?

I am so confused, and hugely stressed about this whole situation, I am really struggling to find another job and am just gutted to have lost that one, a job I really loved.

Your reasons for appealing are basically going to be that they completely failed to follow the basic legal procedure. There's not a lot they can say in defence of that, and there's nothing for you to defend. It's a question of pointing out the legal procedure and making it clear that they didn't follow it, making the dismissal unfair.

It may well be a case of someone making a mistake about your length of service and advising your manager that you could be dismissed without a proper procedure. Once it has been pointed out to them that this isn't possible they will do one of two things. They might apologise and reinstate you, or they might decide that the best option all round is to offer you some compensation instead.

If they offer to reinstate you it's not as simple as refusing it politely and then claiming unfair dismissal I'm afraid - you will have your job back so an unfair dismissal claim would be difficult to say the least.

When unfair dismissal claims actually get to (or almost to) a tribunal, reinstatement isn't usually an option simply because by then there will have usually been disciplinary hearings, investigatory hearings, appeal hearings, mudslinging, accusations and a lot of time passed, making it really not feasible for the person to go back to work.

If you get dismissed without lengthy hearings or anything similar, and then an appeal is upheld, it's obviously not like that. If the decision of one manager to dismiss is overturned on appeal by another manager, it's something that is staying within the employment relationship and happens relatively quickly, without lengthy involvement of third parties and legal advisors, making it very difficult for you to claim that reinstatement isn't reasonable.

Wow, thank you.

Okay, so basically, if I appeal, they will have to admit they were wrong, because they didn't follow any procedures.

Therefore, they will presumably offer me my job back. And I won't be able to go back after all that has happened, and I won't be able to claim unfair dismissal, because they will have offered me my job back?

They certainly should admit they were wrong, although there's no legislating for people's stupidity, so you never know.

Also you should bear in mind that (for whatever spurious reason) they wanted to dismiss you, so they might prefer to offer you some money in terms of compensation for not following a proper procedure or the decision being 'fair', so that they can stick to their original decision not to have you employed there anymore.

They probably don't want you there any more than you want to be there. It's just that if they decide to remedy this by offering you your job back, it might be very difficult for you to claim that wasn't reasonable of them.

First step is to appeal and see what their reaction is, anyway.

Thank you so much for all your help.

I have made an appointment at Citizens advice and hopefully they can help me write my appeal.

Thank you again, it was very much appreciated.