Is this an unfair dismissal ????

Question

I have just been fired from my job, I was a fitness instructor. I liked my job and worked very hard. I had been working there for 5 and a half months so still in my 6 months probation period, just. The new manager, who for know reason disliked me, he had been talking about making some cut backs then a week later fired me for not inputting data on the computer which i did only it had conveniently gone missing from the files, another reason is that I didn’t wear my name badge on two occasions. Is this an unfair dismissal?? Is there anything that I can do??

Oh and I was given no notice, in my contract it says I’m entitled to 1 week notice.

Answer 1

It doesn't matter if it is unfair or not, unfortunately. In the UK you have to be employed continuously for one year on a full time basis to be able to make a complaint of unfair dismissal against your employer. You can't pursue a case against him whether you have one or not. However I also note that you were on probation and were given two seperate causes for your dismissal, one of which - the business with the name badge - you admit to and one - the computer data - you will find impossible to prove. You're on a hiding to nothing. Forget it and move on.

Answer 2

You may have a claim for such dismissal.

You made a mistake by not putting data on the computer (It does not 'Conveniently go missing', and do you have any confirmed evidence that someone else removed it?). Furthermore, lets say you neglected to input the data; Could this be a recurring thing?

But this one instance of such action is not grounds for dismissal, and neither is the name badge thing.

On the first occurence without a badge, you would get a casual warning. Second, a formal verbal warning. Third, a written warning, fourth, a FINAL written warning, and then dismissal. The exeption is to Gross Misconduct (Assault, theft, the big ones), but I doubt lack of badge counts as such.

So, assuming you did not get a Verbal or Written warning, the employer has not followed the law regarding dimissal.

You have the right to know the reasons to your dismissal. Write to your employer and request an explanation of the reasons that you were dismissed. They are legally required to provide an explanation, in writing, within 30 days. You must be polite, and calm and rational to ensure that they both take you seriously and that they do not have a legitimate exuse for refusing.

Speak to a solicitor to see if their reasons are acceptable for dismissal, and to what case you have. Most solicitors offer a free consultation to review your situation and advise.

Lastly, You are still within your probation, so no Notice is required either side (Though 6 months is very long). Your 1 week applies outwith the Probhation.

Answer 3

IF you were an employee, and you had over a year's service (sounds like you did), then if he sacked you in the way you describe you WERE unfairly dismissed. Whenever you're dismissed from a job you're entitled to undergo the statutory disciplinary & dismissal procedure. This requires the employer to write to you, setting out the reasons why disciplinary sanctions may be taken, inviting you to a meeting, and informing you that you are entitled to be accompanied by a colleague or trade union rep. They then have to hold the meeting, make a decision, write to you informing you, and offering you the chance to appeal. If you appeal, you get a fresh meeting and a fresh person hearing it. The only time the procedure can be departed from is in situations justifying immediate dismissal, ie gross misconduct / theft / fighting, and so on. Even so your employer has to write to you with the reason you were dismissed and the offer of an appeal process. Nowadays if one of these processes isn't followed then you have been unfairly dismissed, and will be entitled to claim compensation. You must make your claim within three months of dismissal, unless when the three months expire you have reasonable grounds for thinking that the disciplinary process is still ongoing, in which case the time limit is extended for a further three months. Make sure your solicitor SPECIALISES in employment law, there's too many people out there on the high street who are general litigators and don't know the ins and outs. Hey there Americans - imagine if you had our crazy system! Culture clash!

Answer 4

you can definately take up lack of notice as this is not allowed however although this does sound unfair if you were still in your probationary period then unless you can prove that u inputted this data then you will have very little chance of unfair dismissal, although the name badge does sound like it should just be a verbal warning. As a minimum you should be able to get a weeks pay for your notice, if this is a chain then try contacting either the head office or your area manager and make an official complaint although it sounds that even if you get ur job back then this manager will just look for anything to make your life hell.

Answer 5

I assume you're British. I am afraid that you are not covered by the unfair dismissal provisions in the Employment Rights Act 1996 because you need to have one year's continuous employment to have the right not to be unfairly dismissed. However, you might have a claim for breach of contract: if your contract says you are entitled to one week's notice, you can claim your one week's pay (assuming they haven't given you the money already). Threaten to take them to the employment tribunal and they will probably pay up - you would have to lodge any claim, if you wanted to do so, within three months of your dismissal.

The only situation in which they would have been entitled to dismiss you without notice, if your contract says you are entitled to it, is if you committed 'gross misconduct', because this is treated as fundamentally undermining the employment relationship; from what you say, it does not sound like you have done this.

Answer 6

Your best bet would be to take some advice from the CAB, however as far as I am aware, you can be dismissed during your probationary period if they feel that you are not performing up to standard in the role. They still need a semi decent reason to do this though I do not think you will be successful in any claim. They do need to honour your weeks notice, and any outstanding holiday entitlement accrued. If you have taken more holiday than you are currently entitled to, that may explain the lack of your notice pay

Answer 7

Unfortunately being as you haven’t a year’s service you may not be able to take it to an employment tribunal, however if you check your contract of employment for the following:

Under Probation:
“Clause 4: The first six months, your employment with the Company will be probationary and may be terminated by the Company at any time with 1 weeks notice.”

Then under Termination:
“Should it be necessary for the Company to terminate your employment, subject to clause 4 and/or Clause 16 you will receive notice as directed under each clause.”

It may not have these exact phrases but if under the probation period your entitlement to notice is one week and then under termination it confirms that you will receive notice as directed under the probation clause, then your employer has breached their contract with you by not giving you the weeks notice unless they can prove gross misconduct but usually company disciplinary rules do not apply in probation period and if they do the employer still has to follow a process to dismiss.

I would go see a solicitor...

The Manager sounds like a right peice of work and you will probably be far better off somewhere else.

Hope you get something far better....

Answer 8

If you weren't given the notice you were contractually promised (or appropriate payment in lieu of notice) this is wrongful as opposed to unfair dismissal. I would take further advice if you wish to pursue a claim. The fact that you were in a probationary period does not alter the fact that you were entitled to appropriate notice.

Also, did the manager use formal disciplinary procedures to tackle your alleged short-comings? If not, this can sometimes constitute unfair dismissal (though this could be negated by you being in probation period) if they did not follow the minimum statutory disciplinary procedures set down in law.

To claim unfair dismissal you need one years service, you can claim wrongful dismissal at any time. Be aware these cases are difficult to prove so you need further expert advice from someone who can look at every detail of your claim and how your company will counter claim.

Answer 9

If they didn't pay you for the weeks notice then you have a claim there for sure - they don't necessarily have to give you 1 weeks notice of termination, so long as they pay you for it.

As for the unfair dismissal, these probationary periods are essentially a way for less scrupulous companies to have a 6 month contract - they can usually decide not to continue your employment with little or no reason. Sorry, but I don't think you have much of a claim...

Answer 10

because you had been employed or such a short period you would struggle to do anything about this situation employees have very few rights during the first 2 years of emploment.however if you employer is part of a large chain you could start a formal appeal against your dismissal making the area / regional manager your 1st point of contact. with regards to your instant dismissal i would not consider this gross misconduct and therefore do not see why you should be dismissed without notice i would suggest before going to a solicitor you contact acas 08457 47 47 47 their advice is free and we use them at work (DWP) to advise on employment law