A graduate has been sacked after ten months, seemingly unfairly. Is there anything which can be done?
The question:
A person has been employed for approximately 10 months and passed probation after three months with no adverse comment. This is their first job after graduating from University.
Recently they received a letter straight after leave (to the home before returning to work) to state that the company had serious concerns about their work and they were to attend a ‘performance appraisal’ (sic) interview.
No detail was given but was consequently requested and received. All issues could (and should) have been raised at the time of any incident (and none were serious or could be considered gross misconduct.) The interview took place, with the line manager reeling off the ‘issues’ and advising that in view of these, the company were terminating the employment with immediate effect (please leave but we will pay you one months notice). The meeting lasted approximately five minutes.
The dismissal has been appealed on the basis that the company written procedure of one verbal, 1st written within three months, final written within a further three months had not been followed.
The request is that they take back the dismissal and allow a resignation with no blemish of record and also that there is an additional payment of three months salary (on the basis that if correct procedure had been carried out at least another three to six months earnings could have been expected.) No more has been requested as the person needs to put this out of their mind and get on with their career. The issues have also all been addressed as they should have been part of the normal training and mentoring of a new employee.
I know that a tribunal will not listen to a case of unfair dismissal unless one year of service has been done – but do we have a legal right for the company to follow their own procedure once probation is over?
We are not talking big money here – but a young intelligent person has been very badly treated by an international company and some fairness is needed.
Legal advice:
Martin Brewer, partner, Mills & Reeve
Everything you say may be correct but the reality is that unless the ex-employee has one of the exempted reasons for claiming unfair dismissal the normal requirement is one year’s continuous service so there can be no claim in this case. The exempted reasons encompass such things as dismissal for making a protected disclosure, for raising health and safety concerns, for asserting a statutory right. There are about 15 such exempt categories so you may want to take detailed advice from someone about this.
You raise the possibility of a contractual claim. If the procedure you refer to was part of the terms and conditions of employment (whether expressly or impliedly) and the company didn’t follow the process then yes, there’s a contractual claim available. However the compensation would be limited to earnings for the time it would have taken the employer to go through the procedure. There’s no claim for loss of opportunity to claim unfair dismissal for example (this is an argument based on "if they had followed the procedure I would have obtained 12 months service so would have been able to claim unfair dismissal"). Courts have consistently ruled out such claims.
Beyond that I’m afraid there’s nothing legally you can do.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
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Esther Smith, partner, Thomas Eggar
An employer should as a matter of good practice follow their internal procedures when dealing with a disciplinary issue, but often a disciplinary procedure will be non-contractual rather than contractual which limits an employee’s ability to do anything constructive about an employer’s failure to follow the procedure.
You do not give details of what the performance issues are but it may well be that the employer argues that the issues are not ‘disciplinary’ as such, simply that they were not happy with the employee’s performance in the role, rather than the employee having done anything wrong. On this basis they would have a good argument that they had no need to follow the disciplinary procedure, contractual or otherwise.
Sorry, but I am afraid that there is nothing that can be done here, other than taking it on the chin and moving on!
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
