SPJ

Story goes like this and I'll try to keep it simple!

Person gets job with company to do job A

After period of time company decides employee will now do job B with no discussion with employee.

On querying this with employer, employee is told that mistakes were being made on Job A and Job B now needs cover due to long term sick of original person.

At no time were mistakes on job A made aware to employee.

Employee not happy doing Job B, makes employer aware of this and starts to look for another job.

Emloyee gets offered interview for new job.

The week of interview person is off work with genuine sickness which is reported to Doctor/prscription issued.
Person attends interview during this time and is offered new job.

New employer contact current employer verbally for reference on same day.

Employee goes back into work following Monday, nothing said in terms of sickness / reference though comments had been made to other staff by management about employee looking around for new job and coincidence that reference requested during sickness.

Employee gets home to find letter from employer stating that as they are obviously unhappy in job and have been for interviews, that company has decided to terminate their employment immediately to allow employee to find a more fulfilling role. 1 months pay in lieu of notice.

Sounds pretty straight forward for unfair dismissal however employee only worked for 10.5 months with company - No contract ever issued.


Any experts on here who can give an idea as to whether employee has any right to comp, etc.

No ideas needed as to what should happen. this has been done at length!
Just need practical and sound advice from anyone who knows the law. Seems to be a bit of contradictory info around relating to length of service and what could be claimed in these circumstances

Cheers
Steve

BlkKnight

how long have you been employed there?

Potentially wrongfull dismissal / frustration of contract.

Lot depends on how different the two jobs are (status etc)

/edit

Sounds pretty straight forward for unfair dismissal however employee only worked for 10.5 months with company - No contract ever issued.

I don't think you qualify unfair dismissal due to not being employed 12 months or more.

Alas

Read this.
As under a year unfair does not qualify. Maybe constructive dismissal.
Unfair dismissal : Directgov - Employment

Brendan Hughes

Compensation for what? If you have a new job, and get paid the correct amount of notice, I don't see you've lost anything.

SPJ

The issue here is that somebody has been dismissed for apparently looking for another job (and possible issues with performance) and no grievance procedure has been followed.

Surely this cannot be right no matter how long you have been in a position with a company?

This is basically open book for an employer to treat you badly then sack you when you choose do do something about it - no questions asked -how ridiculous!

Brendan Hughes

I can see the issue. But I can't see the justification for a financial claim for compensation. If you want to sue someone "on principle" that's up to you, but don't expect to get anything in return.

I might be wrong, but prima facie () that looks like a problem.

OllyK

And yet it's OK for an employee to go behind their employer's back looking for new work and attending interviews whilst supposedly off sick? Personally I think they got off lightly being given notice, I'd have a thought sacking for gross misconduct would have been more in line.

RRH

As the person has only been employed for 10.5 months it would have to be pursued through the civil court rather than a tribunal

DCI Gene Hunt

Live and learn..... chalk that one to experience...

and remember to get a detailed contract of employment (role, responsibilities and benefits) next time..............

RichWalk

I agree, an employer can't prevent an employee attending an interview, which is mutually acceptable (time wise) to both parties. As a company owner, if i found a member of staff had been to an interview while claiming they were sick, I'd be livid.

DCI Gene Hunt

Depends what sickness he had and what type of work he does though..... as a potato picker with a bad back could have the day off work and quite rightly go to another job interview....

However this does sound a tad fishy, and wanting to claim compensation seems wrong....

DCI Gene Hunt

The good old days...............

RichWalk

if they drank beer from those things, then they were the good ole days

PeteBrant

Quite, assuming they get paid sick, then effectively the company has paid him to go to an interview with another company.

Not only that, but the original post reads as if a week was taken off sick, and during that week, they attended an interview. Now I would be thinking, "well if you are well enough to go to an interview...."

Would be different if it had been taken as leave.

As it is, there is a new job in the offing, and they have been given a months pay - Personally I think they have come out of it pretty well.

SJ_Skyline

There's trouble at mill!

PeteBrant

1890 : The first ever mobile phone theft is reported

Maz

iTrader: (34)

....And to then consider suing for unfair dismissal on top

RRH

As above.

I don't really think this person has been treated in an unfair manner bearing in mind the months pay.

The employer could have made the position redundant, or just given them a weeks notice, and with no recourse via tribunal.

A private case would be costly and IMHO wouldn't be successful.

jonc

Here's the important detail, no contract, therefore no terms or conditions.

RRH

consequences for no T&C's are quite serious, but once again, the only economically viable remedy would be via tribunal unless someone knows something that I don't... (which is quite possible, I might add, even likely )

brumdaisy

Hmmm. Personally I'd say having someone phone your boss for a reference straight after you've been off sick is the important detail to learn from.

Even if the person hadn't been sacked, they would most likely get a written warning, which isnt exactly going to look great on a reference is it

jonc

Since there were no contract of employment, the employer is not legally bound to provide form of grievence procedure, or length of notice. Likewise the employee could have easily walked out on the job giving no notice to the employer. Neither have any ground to stand on in a court or tribunal since there have been no breach of contract or terms and conditions broken.

Alas

Your'e deemed to have accepted the firms standard contract terms and conditions after 13 weeks whether you've been given one or not.

Van Diesel

Number of issues here:

Failure by company to supply written statement of employment within eight weeks of employee starting. Breach of section 1 Employment Rights Act 1996.

Failure by employer to negotiate with the employee when making significant variation to the employment contract.

Failure by employer to satisfy statutory dismissal procedures. Employment Act 2002.

Employee unlikely to be able to claim unfair dismissal as 12 month continuous service is required unless they could claim unfair discrimination on the grounds of something like race or disability for which there is no qualifying period.

Any employee claim at tribunal is unlikely to be successful unless the employee has attempted to use the employer's grievance procedure - Employment Act 2002.

The employer could argue fundamental breach of mutual trust and confidence if employee is attending job interviews while in receipt of occupational sick pay.

We have only heard one side of the argument here but your friend may wish to contact the Citizens Advice Bureau or ACAS and seek some expert advice. I'm no expert so they should also verify the information given above.

Hope this helps.

jonc

A written terms and conditions should have been provided by the employer if the job lasts more than a month. Verbal contracts are still valid, however, are more difficult to prove unless either party has an independent witness, otherwise it your word against theirs. There is no automatic acceptance of terms after 13 weeks.

SPJ

Interesting that this has prompted a number of opinions

I think those who've made comments about the person not having treated unfairly given payment in lieu / gross misconduct etc are missing the point.

The person concerned had made the employer aware that they were unhappy at having their job changed with no notice or discussion. The new job required a number of different skills which the employer did not provide adequate training for.
What type of employer would expect someone to do a job they are not adequately trained for, come on.

As for going for interview when off sick, this is unfortunate in that there was only going to be one opportunity for interview which the person in question did not want to pass up (understandably). They had been to see a doctor the day before and had been issued with a prescription. They made it clear to the interviewer of the situation. Unfortunately due to the nature of the new employer's operation, it's standard practice to consult current employer prior to giving job offer.
The current employer would not necessarily have known that the interview was conducted during period of sick leave as the person had had a couple of days holiday some days before.
This was the only time during the course of employment there had been reason for sickness absence so no 'history' of this sort of thing.

I hope the key to this is that the employer has failed to adhere to certain employment rights acts such as failing to issue contract, not adhering to grievance / dismissal procedures and so on.
At the end of the day looking for a new job does not warrant being given the boot in the manner it has been done, particularly given the circumstances which led to the person looking elsewhere in the first place. Yes going for an interview when sick is a valid point, but under these circumstances who wouldn't?

Clearly the employer apears to have done this just within the 12 month period so as to avoid the risk of having the unfair dismissal case against them, but I wonder whether there's any substance in the contract/grievance/dismissal procedure issues.

In any case,to drop a letter through your employee's door while they are working in your offices is cowardly to say the least. Surely they should have had the person in the office and explained the situation. That is common decency and simply highlights the type of people they are dealing with.

Thanks for your replies, chaps, even the comical ones ;-)

Smiler

Less than 1 years = Hardly any rights whatsoever

Let me get this right Person was off work with genuine sickness but was well enough to attend an interview

If you're well enough to attend an interview then you're well enough to go to work

StickyMicky

that is good to hear, i sacked somebody this morning for taking the **** yesterday