Being sacked - unfair dismissal

[katie2812]

My friend is being sacked today. She was told before the investigation and disciplinary procedure that would be the outcome. They offered her a choice to resign and have a reference or go to diciplinery be sacked and then she won't have a reference (she recorded phone call as obz they can't sack her before diciplinery or even Investigation) She has just got a sick note and they said they will continue without her. I should add she hasn't done anything entirely wrong - manager called her out on group chat so she responded sticking up for herself (politely) with proof that she wasn't doing what the manager claimed. They said she has a poor attitude. They bullied her before all of this (see previous thread).

An employment lawyer has said she can't sue because she hasn't been there for two years (maybe just over a year) but she has so much evidence against them. Is this the case?

I’m confused - she is being sacked because she had a poor attitude on a group chat? The employment lawyer is likely to be correct , was she still in a probationary period?

Yes of course the employment lawyer is correct! I appreciate that isn't what she wants to hear, but she has no right to claim constructive or unfair dismissal until she has 2 years service, regardless of how much evidence she has.

Under 2 years they can sack her for any reason that isn’t discriminatory (sexist/racist/homophobic etc) - no need for them to even do a disciplinary.

I think you’ve not got the right info op, she’s being fired for what sounds like gross misconduct and of course the lawyer is correct.

Unless she can prove discrimination (actual discrimination because of one of the 9 legally protected characteristics, not just that they didn't like her) the company can terminate her contract of employment within the first 2 years for any reason.

She will be entitled to her notice period as defined in her contract but that's the full extent of any recompense from the company.

Unless it's something like discrimination of a protected characteristic (disability or racism etc) then yes they can let her go for any reason with less than 2 years employment, and she cannot sue them.

Ok looking at rhe previous thread she has a history of poor performance, she is arguing she went off with stress because they were bullying her, but it does appear her view of what constitutes bullying is calling out her poor performance,

I don’t understand what rhe disciplinary is for, but she’s been there less than two years and it seems like it’s disastrous all round. I don’t think she can win this one op.

She has a disability which has been confirmed by her doctor - she suffers a lot with anxiety and depression and has been taking medication for it. The reason they are sacking her now is because she replied on the group chat to her Manager (even though she was just explaining herself). She doesn't have an attitude or bad performance prior to this. I have worked with her in a previous role and she performed well. They didn't give her a handbook when she asked for it nor did they investigate her. They just went straight to diciplinery and outcome on same day and told her outcome before the process began so they didn't even take into account her side of things. Recently she did a skydive for a suicide prevention charity and the manager said to her "well you didn't have anxiety doing that then!" Sarcastically.

I don't understand how this is allowed? They are literally forcing her out and have bullied her throughout the last few months she has been coming home crying because of some of the things they've said. They didn't give her a fair diciplinery or investigation process, how is allowed they can tell her the outcome before the process begins?? they don't have HR so she couldn't seek advice from them. Everything they have done isn't allowed but because she hasn't been there for two years she can't take it to tribunal?

www.acas.org.uk/dismissals/unfair-dismissal

Op does the disability affect her ability to do the role and did she request reasonable adjustments, it doesn’t appear she’s being fired due to her disability?

The bottom line is for under two years as long as it’s not discrimatory etc a company can terminate for any reason they wish.

how is allowed they can tell her the outcome before the process begins

Because she doesn’t have full employment rights. They don’t even have to do the disciplinary. They can just call her in, say it’s not working and terminate.

It's tough, but if she has worked there less than 2 years, she can be sacked at any time for little or no reason. In my husband's line of work and level of management, it happens a lot. It has just happened for the 3rd time in 3 years. There doesn't have to be a reason or the reason can be spurious. In order to maintain a semblance of decency, my husband was given a 2 week period of notice to improve. Since he was already doing all he had been employed to do, he couldn't exactly improve in a 2 week period. Later, he found out, his replacement had already been appointed, even before the 2 week period was up. It sucks, but unfortunately, that is the way of things.

You have an interesting job history and I am wondering whether the friend is yourself? You seem to have posted about a nice job in hospitality on 26 June and an job offer with no start date on 2nd July.

You also post a few times about your anxiety and just leaving jobs if they make you feel down or anxious, suggesting people just 'go on sick' for a month or more.

If its yourself (or I guess a friend) then there is no reason not to dismiss you for poor performance. You mention in another post that you went off sick when you faced a meeting about poor performance - so I suspect this didn't come out of the blue.

Having anxiety or any other mental health problem does not mean you can't be sacked. It means your employer should make reasonable adaptation if they are aware of your health problem. A reasonable adaptation is to allow you to perform your job not a ticket that allows not to do your job well. If you haven't mentioned health problems previously then it is unlikely to be perceived as discrimination at a tribunal as the employer can't be expected to make adaptations for something they have not been notified about.
Being unwell or suffering anxiety doesn't mean you can't be sacked for misconduct. If you are under two years employed and there is not discrimination then you have very few employment rights. They can sack you because they don't like your perfume (not good practice, but entirely permissible).

Makes no difference OP. A solicitor wouldn't touch it. Under 2 years they can let you go at any time.

Hi cherrypovala,

No it isn't me 😅 I had one bad job (two years ago) where I suffered with anxiety in and really struggled with leading to very bad anxiety. I then had a hospitality job which I loved but after covid, I decided to go I to healthcare which took so long to give me a start date.

But I would hate for anyone to feel how I felt in the job I had before. I wish people had told me sooner to leave so I didn't get down to the point I did. That's why I advice to go on sick to people a lot when I see they are really down or to leave 😅

My current friend is literally being bullied and I feel so protective because I was in such a bad job before albeit I wasn't bullied

It must be hard watching a friend struggle but if she’s not been dismissed because of a declared mental health diagnosis, then she’ll have little ground for complaint.

Having a disability isn't a get out of jail free card - and before anyone starts screaming, I am in receipt of PIP enhanced in both categories, and my disability totally impacts on my day to day activities. Doctors do not have any right to decide someone is disabled, and they're is a specific and clear legal definition. Even if someone is disabled, it is only then perhaps discrimination if they are dismissed because they are disabled.

She was sacked because they don't like her attitude. That isn't a disability. It's irrelevant whether they are "right" about her attitude or not - the employer decides what attitude they like, and if you have less than two years employment then I'm afraid that their opinion is absolute on the matter. She probably didn't help matters getting a sick note - that was almost an invitation to sack her. Sickness does not trump disciplinary action, but reacting to a disciplinary by getting a sick note is going to ring every alarm bell going and tell an employer to get shut off the employee before they get to two years. Sorry, that's maybe harsh, but it's pragmatic and honest!

They didn't need to be " fair" or "nice" or anything else - they could have simply handed her her cards without any disciplinary.

And hers some advice for the future. HR are not there to advise employees. They are there to ensure the employer gets their own way without landing in a court. If you want help you join a union, and long before you need it.

And then that way toy don't need to post third party information about people, because in the end she's your friend and it's your job to be a shoulder to cry on. But in my experience nobody ever tells their friends exactly the whole unvarnished truth. So you have no idea about what has really gone on.

Bullying is a very strong term that seems to often be bandied about.

In what way was she bullied because so far what you have described is performance management, targets and expectations. Putting the teams stats in view of the whole team isn't bullying if everyone in the team is shown. If just one person is picked out, their stats shown as a bad example then that could be seen as bullying depending on the context.

Advising people to go on the sick op is often not a good idea and can exacerbate a problem,. Sometimes working with your employer and trying to resolve th issue is better. Fucking off on the sick is often going to lead to situations your friend faces

But bottom line is she’s not been performing as required, she’s been off on the sick instead of trying to resolve it and asking for performance support, and she is there less than two years.

To br fair, the outcome was obvious.it was always coming to this.

I’d think hard before I advised anyone else to go off sick if I was you. You’re not always doing them a favour and may actually just be nailing their coffin shut.

In the current climate, things are going to be tough. If her attitude wasn't right as far as the business is concerned and she has not been there for two years then it is tough. A friend of mine was recently 'let go' - cheap as she had not been there for two years and she wanted to fight it. It then transpired she had the 'odd day' sick with migraines/anxiety attacks and was 'occasionally' late in because of 'traffic' which all meant that she would then struggle to meet her targets. She said she felt 'bullied' but she did sign a contract agreeing to bide by their terms and conditions which clearly she did not.

She could have had the best relationship with her boss, worked well, had recommendations, and still come in one day and be told not to come back the next. And that would have been legal.

They actually did more than they had to do legally. She needs to learn from this experience and work on her attitude or history will just repeat itself.