Dh being bullied to accept a rubbish severance package - does anyone know what his rights are? URGENT!

[wilbur]

Dh got called into boss on Fri afternoon and told he was being let go due to boss losing confidence in his work (firm going through tough time, not dh's fault, but he's in the firing line). Boss is a known bully, very bad guy to work for, so dh not too sad to be leaving, but they're offering him a crap severance package, not even his 3 months notice, and have said he has to accept it by 9am tomorrow or he gets nothing. And if he tries to go for unfair dismissal, they say it gets mediated by his boss who decided to dismiss him in the first place. Is that legal? Company HR person is basically saying "accept this small amount of money so we can sidestep the disciplinary process, if you choose not to accept it, we will fight you and you will get nothing." I have looked on the ACAS guidelines and it only seems to say that "where possible" the complaint about unfair dismissal should be dealt with by someone other than the manager who the dismissed person has been working with. Am assuming the compnay will argue there is not other possible person.

If anyone know anything about this, I would really, really appreciate some guidance.

I find this very depressing for so many reasons most particularly the reaction of the company. However despite the fact that I don't want to get drawn in again, I do feel I need to point out that if you are in month 11, and even if there is no payment in lieu of notice provision you cannot claim unfair dismissal. The company could breach the contract, and refuse to allow your dh to work. he then has 11 months service, plus 1 week (derived from the statutory minimum in the employment rights act 1996, not the extra 3 months) for the purposes of claiming unfair dismissal. If that week does not get him past 12 months, it does not get him past 12 months.

He also has a claim, for breach of contract, for the losses from his contract. Those losses are to his notice under his contract i.e. the 3 months. However unfair this is there is in English law for loss of the opportunity to claim Unfair dismissal by being denied the right to work your notice.

Rarely you can get an award for specific performance of an employment contract by an employer to go over the 12 months, in 15 years of professional practice as an employment lawyer I have done it once, on very specific circumstances, and at great cost to the client.

Thereonthestair

Can I please refer you to the following:-

s.97 Effective date of termination
(1) Subject to the following provisions of this section, in this Part ?the effective date of termination??
(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,
(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and
(c) in relation to an employee who is employed under a contract for a fixed term which expires without being renewed under the same contract, means the date on which the term expires
[(c) in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect].

So, usually, and unless emplyee disissed without notice (only allowed for gross misconduct) you must consider notice period in all calculations.

Where an employee is PILON'd and paid their full three month (or whatever) pay in lieu, the effective date is conidered to be the day they leave - ie earlier. However the EAT has ruled that this date can in certain circumstances be disregarded if the effectve date of termination has been deliberately set by a company so as to deprive a claimant of his statutory rights, thereby meaning that a claim could (theoretically) stlll be bought. In this case however the OP wants the full ay anyway so that point is by the by anyway.

Actually, reading your point more carefully I don't disagre with your point - ie company will be breaching contract if they dismiss without notice, but that this doesn't automatically = right to EAT for unfair dismissal, only right to claim for breach of contract for full 3 month pay (and accured holiday, etc) but given that this is what OP wants anyway, that's all I concentrated on. Dismissing without either notice period or PILON is OP's position, which she can clearly claim for.

I don't think this is an issue for an employment tribunal. I think this is breach of contract. If the contract states a 3 month notice period, you have to pay the notice, unless you are dismissing for gross misconduct. I am not sure whether the year has any significance in terms of the notice period. That is in term's of employment law. What he needs to do is merely assert the terms of his contract under contract law (I think).

As for the "disciplinary" element, no procedure has been gone through and it just seems like an excuse to save money. I would get a solicitor to just write a letter confirming the above and asking for the company to honour its contract or be taken to court.

Are you sure his contract states 3 months notice, seems like a very long notice period to me

3 months is standard in a lot of professions.

Terminating employment without paying contractual notice is wrongful dismissal (ie breach of contract) and there is no minimum working period for claiming it. You used to be able to claim for it either in an ET or the county courts as a straightforward breach of contract. If the latter then you'd get a longer time limit to claim (6 years) instead of the 3 months for an ET.

Many have already discussed the unfair dismissal time limit and I think you need to get definite legal advice on this point. The previous temporary employment leading into a permanent role may be enough to extend the relationship to bring it up to the year. My understanding of s.97 ERA was that if an employer terminates with immediate effect even though someone was entitled to a longer notice period you could only add the statutory notice period which is 1 week for under a year for calculating unfair dismissal. Again that may have changed as I haven't done employment in a while but I'd recommend getting these 2 points checked and then even if you've no chance of succeeding on unfair dismissal start with a large unfair dismissal award as starting point so you can get the notice and holidays paid more quickly.