DONT RESIGN !!! If you do you will lose rights to any redundancy payments.
If you are made redundant then your employer is obliged to honour the terms of the contract, i.e. allow you to work for the three months or simply pay you three months salary in lieu of notice.
Technically it is not you that is made redundant, it is the role that you perform so your employer cannot employ someone else in the same job after making you redundant.
Otherwise your employer can only sack you without redundancy for disciplinary reasons such you having breached the terms of the contract.
EDIT: If it is a matter of you not wanting to change the work that you do, and accordingly the terms of your contract, and it suits your employer to give someone else the job then they need to offer you a termination settlement which should in the very least be three months salary in lieu of notice.
How long have you been in the job?
Edited by cheddar on 20/10/2008 at 11:37
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Cheddar, I have been in the job for 11 months. My contract was confirmed after a three month probationary period. About 3 months ago I was asked in addition to my mangement responsibilites to do some of the draughtsman's work.
To cut a long story short, trying to do both parts of the job meant that neither got done properly. Some costly mistakes resulted, now they have lost confidence in me and I am extremely unhappy in my work.
Obviously in the current climate I don't want to be out of work but I can't see a future here.
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So if you've only been there 11 months, then you have no entitlement to redundancy, and no protection from unfair dismissal. You are unlikely to get more than your contract offers.
No point hanging around being unhappy. Are you sure you cannot negotiate a new agreement with your employer?
Look for a new job. It's quite possible that this afternoon your contract will be terminated, with three months' contractual notice pay paid.
I suggest a quick telephone call to a firm of solicitors; you'll get five minutes free advice - of course they'll hope you will retain them to negotiate, but equally they'll tell you exactly what your rights and expectations will be.
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Should I be entitled to the full three month's pay even if I don't work out the full notice period?
This is what confuses me.
I guess it will come down to the goodwill of the company. I will try to talk to a solicitor before this afternoon but in the meantime I would welcome all and any opinions.
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>>Should I be entitled to the full three month's pay even if I don't work out the full notice period? >>
Yes definately!!!!!!
You were employed as a manager with a contract confirmed after 3 months probation, the company then asked you to cover some other duties:
Q's:
Was the contract changed and did you sign it?
Were you keen and willing or were you reluctant because you expected that it would be difficult to cover both duties?
If the latter, and you are dismissed, you may have a case against you employer, speak to a solicitor.
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No, the contract was not changed and although I agreed to carry out the drawing work I did express some reservations. My contract doesn't state that I would not be required to do any drawing but it was said at the interview.
There is a general catch-all clause about carrying out other duties as may be required.
I think that if I am offered three months pay and a reasonable hand over period then I may accept it.
For future employment surely it will be better if I resign rather than being sacked.
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>>For future employment surely it will be better if I resign rather than being sacked.
Well yes, but virtually nobody is ever sacked these days. And if you leave a job with no job to go to, then it will look like being "sacked" (by any other name) to any half-intelligent employer... For all that your reference will probably say "x worked here from 1.1.08 to 30.10.08; this is a standard reference given to all employees."
Cheddar: you state you are entitled to the 3 months' notice. How certain are you? I am no lawyer, and am not certain of the law concering this point - hence a recommendation to have a chat with one. But... to stick my neck out, as I understand it, within the first 12 months, an employee has no rights not to be unfairly dismissed. So, if they sack you within the first 12 months without going through appropriate procedures, then you still have no rights to claim against them. And if they sack you, I guess contractual 3 months' notice no longer apply? In any event, if he works there for another three months, he will have been there for over a year, and so he may have acquired further employment rights?
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Cheddar: you state you are entitled to the 3 months' notice. How certain are you?
Not entirely though I have been there from an employers point of view.
It is not black and white, and less than 12 months employment does not help, though IMO the employer will not sack the OP because of the risk of an unfair dismissal claim (though if he did the OP should consult a solicitor re unfair dismisal). So either redundancy, in which case the entitlement to the contracted three months applies (unless a clause says after 12 months employment or similar), or a negotiated seperation would seem most likely. In the latter case the OP is agreeing to leave so the employer does not have to make the position redundant (i.e. to make it easier for the employer) so the obvious thing for the OP to do would be to hold out for the contracted 3 months notice.
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>>IMO the employer will not sack the OP because of the risk of an unfair dismissal claim
But until he's been there for 12 months, he has no rights not to be unfairly dismissed (save for in certain circumstances, e.g. complaints about safety, etc).
OP cannot bring an unfair dismissal claim.
Edited by Mapmaker on 20/10/2008 at 14:38
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But until he's been there for 12 months he has no rights not to be unfairly dismissed (save for in certain circumstances e.g. complaints about safety etc).
That's true I think, but there was a very relevant edition of In Business on radio 4 last night that may be relevant. The whistleblowers act has been found in case law to apply when the infringement is against individuals, including unfair changes to contractual terms. You would, by the sounds of it, be able to use this law to bring a tribunal over the additional responsibilities unfairly put upon you. There's no 1 year exclusion, and no cap on damages. You'd have to listen to the program and make up your own mind.
By the sounds of it though, you'd be best off negotiating to leave while being paid the 3 months notice. Sounds like an unpleasant situation, hope you get it sorted.
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Thanks for the advice and good wishes.
I will see what they say this afternoon.
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But until he's been there for 12 months he has no rights not to be unfairly dismissed (save for in certain circumstances e.g. complaints about safety etc).
Hmm, as I say its not black and white, you are perhaps right in that within 12 months he has no rights not to be dismissed though if he is dismissed then his terms of contract apply re notice.
Not applying terms of contract would surely mean unfair dismissal because the terms of contract apply within the 12 months.
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Clearly the best option is that you find another job, and agree to start it as soon as possible. If your current employer wants to terminate your employment then your three month contract is the starting point. You'd be nuts to accept less than your legal right in the current market, unless you are supremely confident of getting another job straight away.
There is of course the issue of references - a termination is not ideal, so you might agree what they will say when a future employer contacts them. Bear in mind that there is no legal right to a reference, so you could agree that they will simply confirm your employment dates, and no more, leaving you to explain why you left without another job to go to.
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May be a bit late now, but if you leave a job of your own will, i don't think you can claim any Benefits from DWP (Department Works and Pensions) for upto 6months, so whatever you do, Dont resign volintarily!!.
Billy
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If he has been there 11 months, then if he is still there next month that's him been there for a year so does his rights change then?
Wonder if they do and the employer knows that and is thus wanting to finalise things before then?
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Okay, so things are slightly different to how I understood them. Firstly the three months notice is one sided only, they only have to give one.
My employer considers the mistakes made while I was trying to be a manager and a draughtsman amount to gross misconduct. "... serious negligence which causes unacceptable loss."
No formal disciplinary measures have been put in place, but I have been asked to resign. They say that if I do not resign they will summarily dismiss me for gross misconduct and will receive no further pay. If I do resign they will pay me until the end of this month. I will not have to work any notice period.
I told them I would let them know in the morning.
I am a bit stunned to be honest. I have come home and broke the news to my wife but I'm not sure I have a case against them.
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It's all a bit short on detail but negligence implies a lack of care on your part and it's far from clear that this is what happened. If you were doing the best you could I (in my amateur view) don't see how you can be guilty of negligence or "gross misconduct".
Isn't there any warning option where you're given another chance? Or do they just want you out? Do your rights change at the end of 12 months?
You might find a no-win no-fee solicitor to advise as to the rights and wrongs or even the CAB might be able to help.
Good luck.
Edited by Optimist on 20/10/2008 at 17:16
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I am sorry to hear of your predicament, you need to speak to a solicitor soonest, also a visit to your local Citizens Advice Bureau would be a good idea.
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Are you a member of a Trade Union Stackman ? If you are their legal people will give you advice. Even if you are not, contact the Union appropriate to your industry. they should at least provide you with contacts for some appropriately experienced solicitors.
In the meanwhile, get yourself along to some employment agencies. Is there temporary work available in your field or a related activity for example ?
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I agree with Cheddar - you need to go to a solicitor with a copy of your contract and your employee handbook. Find one who knows about employment law, which may not be the person who does domestic/matrimonial/property.
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told them I would let them know in the morning.>>
Ideally you should seek advice before deciding upon a course of action, perhaps call in the morning to say that you need another 24 hours.
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You need a solicitor.
The following is my *opinion* and I am not a HR or law specialist.
If you were really guilty of serious misconduct they would have sacked you already. Mistakes/errors are not misconduct. I think they are trying to force you out at minimal cost. I do not believe that they are able in law to dismiss you without paying the salary due.
You must read your contract and handbook of employment re the disciplinary procedures. If they exist. Read your contract of employment. contact union/cab/lawyer asap as has been stated.
I dont know what has happened but I think that if I were in what I think that your circumstances are then I would be insisting on the notice period being applied. ie they pay you now for what you've done this salary period plus one month and you walk out the building.
I would not SIGN or ADMIT anything without passing it through a lawyer.
edit: my guess is that this is a smallish employer and they dont know the law?
Good Luck anyway.
Edited by adverse camber on 20/10/2008 at 17:46
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While it's unlikely that you want to explain the circumstances on here, you need to look into what may be construed as gross misconduct. I Googled "gross misconduct employment" and the Michael Page information (first hit on Google) is worth reading:
www.michaelpage.co.uk/content.html?pageId=15676
Read the whole document. It won't take the place of professional legal advice, but it's a good starting point.
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You should take legal advice. If your employer thought it was a clear case of gross misconduct, then why would they offer to let you resign and incur the cost of a month's pay?
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You obviously need legal representation.
Legally they cannot make your position redundant and then recruit again (so want to fire you or reesign) but if you have mortgage payment protection and need support from the DWP then resigning will lead to a problem (i.e. no money). If you're fired and you have grounds to fight for compensation it might end up being the better option even if a month's pay down.
Good luck. Sound like you have been let down by your employer big time.
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Another thing to bear in mind / check up on, is that quite alot of insurance policies require you to be "working" at the time of a claim or within so many weeks (16 i think). I fell foul of this "trap" when i finished work through ill-health, and tried to claim on my mortgage protection policy. Stupidly, I continued paying my mortgage (for 2 years) out of my Savings, until they went, then tried to claim on my policy, although i had kept my installments up to date, they refused to pay up because i hadn't worked in the u.k for 16? weeks prior claiming.
Billy
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Thanks for the flurry of answers. I am overwhelmed by your kind support and knowledge.
I will make an appointment with a solicitor in the morning. It's not as if I didn't try to make the job work, I put in lots of overtime and told my bosses I was struggling to keep up with the new demands of the job.
There have been no disciplinary procedures implemented or warnings issued.
I guess all I have to lose by forcing them to dismiss me is two weeks wages, as they will pay me up until today and their offer was to pay until the end of this month if i resigned.
Again, thanks for all your input. What a wise old bunch you are ! ( Figure of spech, not meaning to suggest that you are old !)
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Ouch. Poor you. Not a nice place to be. On the plus side you won't have to turn up again to a bunch of so-and-sos who don't appreciate you and overwork you.
Initially, I thought you need to talk to a solicitor. However I am not so sure.
They have effectively offered you two weeks' pay in exchange for resigning now. Your contract would give you one month's pay in exchange for termination - which they are within their rights to do (you have only been there 11 months).
They allege gross misconduct, under which circumstances they are entitled to kick you out with no pay.
If it is not gross misconduct, they are entitled to kick you out with one month's pay. Remember you have no protection against unfair dismissal as you have only been there for 11 months.
Whether or not it is gross misconduct is likely to cost a lot of court time to decide. = money. A big City employer would automatically cave in to a solicitor's letter. I doubt this lot would.
Find out what your reference from them will say. "X worked here from 1.1.08 to 31.10.08." would be ideal...
Personally, (other issues notwithstanding) I'd take the two weeks' wages on offer, as suing them for breach of contract for the rest of your month's notice is scarcely worth the cost of the solicitor - nor the worry, nor time. I don't know what the benefits implications of this would be (sacked v resigned).
Beware spending a lot of (or indeed any) money on a solicitor.
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Beware spending a lot of (or indeed any) money on a solicitor.
CAB could be a good first point of call.
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Remember you have no protection against unfair dismissal as you have only been there for 11 months.
However not applying terms of contract would surely mean unfair dismissal because the terms of contract apply within the 12 months, depends how the contract is worded.
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