advice on dismissal without warning please

[MrClutch]

Re: advice on dismissal without warning please

Thanks guys. Ive emailed you teaboy

[MrClutch]

Re: advice on dismissal without warning please

letter posted

[teaboy2]

Re: advice on dismissal without warning please

As Mrclutch has posted the letter, i shall post up a draft version either later today or tomorrow, depending on if i have time to go through it and remove anything that could identify MrClutch.

[teaboy2]

Re: advice on dismissal without warning please

Hi All sorry i didn't get chance to post this earlier - Busy period returning to the office after the Xmas holidays. Anyway, below is a copy of letter i wrote on MrClutch Behalf. We also had a response yesterday, a copy of which is posted below lower down too.

Letter of Appeal - Take note of the title and then note how they are clearly refusing to acknowledge it as an Appeal and therefore denying him his right to appeal.

FORMAL LETTER OR APPEAL


Dear Mr XXXXX.

BACKGROUND DETAILS TO THE DISPUTE:

Recently MrClutch was absence from work 16^th, 17^th, 18^th 19^th and 20^th December 2013, for a period of 5 days. On the first day (16^th) MrClutch messaged his boss, XXXX (second in command to XXXX as XXXX was absent due to holiday day) informing him of his absence. Also on the first day of absence my client had sent in an SC2 Form. On the 5^th day of absence MrClutch received a letter (a copy of which is attached to this letter), dated 18^th December 2013, informing him that:

“Due to numerous unauthorised absence’s, more recently the 16^th, 17^th and 18^th December, when you failed to notify the Company that you did not intend to attend for work, I write to inform you that your employment is terminated with immediate effect.”

Therefore effectively, Mr XXX had unlawfully and unfairly terminated MrClutch’s employment contract with your Company on the 18^th December 2013. I say it was unlawfully and unfairly terminated as no formal investigatory or disciplinary procedure, as set out by ACAS code of practice, was carried out or even instigated – This amounts to Automatic Unfair Dismissal where the 2 year eligibility for issuing a claim to Employment Tribunal does not apply, or/and alternatively, such matter can be brought before civil court – Your Company is effectively in breach of contract for failing to carrying out correct procedure, not to mention being in breach of your own company policy on disciplinary which should be in line with ACAS code of practice. There is no right in law for an employer to immediately terminate an employee’s contract without following correct procedures first!

I must also point out that on all previous absences (referred to in Mr xxxx’s Letter as numerous authorised absences) where MrClutch failed to attend work. That MrClutch had, in fact, informed the company by message or phone call to head of the Human Resources Department/Personnel (where direct manager was also absence), Mr XXX himself, or left message with a lower member of staff. I also point out that on none of these previous occasions of absences was any issue raised either informally or formally by the Company with MrClutch in regards to the way he reported his absence upon his return to work. Evidence of this is the lack of any previous disciplinary proceedings or formal warnings as the result of any previous disciplinary proceedings.

Also in the letter from Mr XXX’s, Mr XXX’s accused MrClutch of being unreliable on several occasions and have often failed to report his absences, in line with company procedures. MrClutch has informed me that he has never been given a written contract (legally known as written statement of particulars) which is a breach of section 1 (ss. 2) Employment Rights Act 1996. Which makes clear said written statement must be given to the employee within 2 months of their employment commencing - Proof that MrClutch had not been given a contract is in the notes relating to MrClutch's recent performance review, whereby the company admitted the need to give MrClutch a written contract.

MrClutch has also informed me that no Company Handbook is/was available and readily accessible within the workplace. This is a breach of section 6 Employment Rights Act 1996 – The need for a Company Handbook, cannot be understated as it contains documents/policies referred to under section 2-4 of the employment rights act which are in regards to the content of the employers Written Statement of Particulars. Therefore the information in the Company Handbook is referred to by an employee’s written statement of particulars. If said Handbook is not readily available or easily accessible to all employee’s then such employees have no way of knowing company policy or procedure. Therefore MrClutch was in no way aware of what the correct procedure was in regards to contacting the Company to report his absence. Also as this was the case, and as MrClutch was not told otherwise after previous absences, then it was customary practice to contact the Company by the methods employed by MrClutch. Customary Practice takes precedent over Company policy where such policy is not readily available or accessible by means of a Company Handbook, and when such policy was not actively enforced when breached previously.

CONCLUSION:

It is therefore obvious that MrClutch has not breached his contract, or company policy. You cannot breach a policy, when the policy is contained in a Company Handbook, where the employer has not ensured said handbook is readily available and easily accessible. Such handbook should be kept up to date and available in Staff common areas such as Staff Roam, Break Room or Locker Room.

Your Company has acted in breach of MrClutch statutory rights, including the right to not be unfairly dismissed and your company has acted in clear breach of employment laws as named above. I could likely name a lot more breaches of the law made by your Company if I had the time. You have also breached MrClutch’s contract.

Therefore, as requested by MrClutch, you are hereby required to fully reinstate MrClutch and pay him back pay from 18^th December 2013 to the date before his first day back at work. Alternatively, you are to compensate MrClutch from loss of earnings to the sum of wages, equal to the period of time in which MrClutch was your employee. This being 14 months wages, and is to cover the cost of lost future potential earnings. If you choose to compensate MrClutch for lost potential future earnings, then please have your solicitor draw up a compromise agreement for you to sign. A copy of said compromise agreement is to be sent to both myself and to MrClutch so that MrClutch may receive the appropriate advice prior to signing and committing to the compromise agreement. You are also to agree to give MrClutch a favourable reference that is factual as part of the compromise agreement.

You have 14 days in which to make your decision. If nothing is heard from you within that period then I shall instruct MrClutch to issue civil court proceedings against you. MrClutch reserves the right to take Legal Action without further notice.

Please also ensure that copies of all future correspondence are sent to both me (Address in the footer and header of this letter) and to my client.


Yours Faithfully

Signed by Both My Self and counter signed by MrClutch

There solicitors response: (Bits in red are my own input)

Dear Mr Teaboy2

MrClutch

We act on behalf of Xxxx xxxx Limited, the former employer of the above-named. We are in receipt of your letter to our clients dated 1st January 2014

MrClutch was dismissed for good reason and was paid all contractual entitlements, including salary, accrued holidays and one week's notice pay (Note MrClutch was dismissed with out notice), up to the date of termination. Given the date of the termination of MrClutch's employment, being after payroll had been processed for that month, there may be a small balance outstanding, and that will be remitted to MrClutch in January's Payroll.

MrClutch has no contractual or civil claims which he can pursue. As you note in your letter, MrClutch does not have the requisite 2 year's service to enable him to bring a claim for unfair dismissal and the circumstances do not give rise to any alternative claim (I never said he didn't qualify i said it was automatic unfair dismissal so 2 year eligibility does not apply. And he can take it to civil court under both contractual and employment law for breach of contract)

Our Client does not, for reasons set out above, intend to enter into any discussions with regards to a compromise agreement (now known as settlement agreement)

We trust that clarifies our clients position. Neither our clients, or this firm on the behalf, intend to enter into any further correspondence with you or your client.

Signed

Solicitor

I notice that they do not once try to counter the legal points i raised. And are effectively condone dismissal without any disciplinary procedure being carried out. They seem to think there was a notice period when they mentioned weeks notice pay, this is despite the fact that the letter from the company clearly stated MrClutch's employment was terminated with IMMEDIATE effect, there no notice period was given - Another breach of employment law.

[CleverClogs]

Re: advice on dismissal without warning please

I notice that they do not once try to counter the legal points i raised. And are effectively condone dismissal without any disciplinary procedure being carried out. They seem to think there was a notice period when they mentioned weeks notice pay, this is despite the fact that the letter from the company clearly stated MrClutch's employment was terminated with IMMEDIATE effect, there no notice period was given - Another breach of employment law.

Isn't it a pity that our resident employment barrista isn't around to give them hell? :bolt:

[teaboy2]

Re: advice on dismissal without warning please

I suspect the notice pay the are referring to is actually week in hand and not a weeks notice pay. Though we won't likely know this till all monies outstanding are paid end of this month.

[Johnysam]

Re: advice on dismissal without warning please

Hi There,
I would advise you to contact a legal adviser and sort out the matter.

[MrClutch]

Re: advice on dismissal without warning please

what a tangled web we have

[MrClutch]

Re: advice on dismissal without warning please

awaiting teaboy next move

[MrClutch]

Re: advice on dismissal without warning please

is teaboy on holiday?

[MrClutch]

Re: advice on dismissal without warning please

anyone??

[teaboy2]

Re: advice on dismissal without warning please

is teaboy on holiday?

No i have been in hospital since we last spoke unfortunately. Will be back on the case next week for you.

[Mr $quandaŁot]

Re: advice on dismissal without warning please

How are you getting on with this matter?

You absolutely must take relevant legal action against them and not let them fob you off!

[teaboy2]

Re: advice on dismissal without warning please

Can't say just yet in detail, but awaiting a response from the other party to something they are legally required to respond too, whether they want to or not. :tinysmile_twink_t2:

[MrClutch]

Re: advice on dismissal without warning please

just checking in to let you know that we are still awaiting a response