How is length of employment measured?

[matchmaker]

For a possible unfair dismissal claim. How would you decide how long a "zero hours" employee had been employed for, to find out if they had the minimum 2 year requirement.

Scenario: part time (one day per week) worker on zero hours contract. Initially started work May 2010. Never received written contract. About a year ago due to illness and requirements of a full time job is unable to come in to the part time job for about 2 months. Does not resign and does not receive P45. Returns to work and resumes in previous position. Only change is that he is given a new payroll number - nothing else.

Can his employment be regarded as continuous?

[Gargamel]

Odd one.

I would say you'd be looking at the persons intentions here.

If they were scheduled to work and were ill, then yes it is continous. If they had another full time role and simply didn't come to work - then they probably in reality left and returned.

However without an initial contract, seperation and so on it is arguable either way.

I would follow the money. if they were paid weekly (say) and were then paid four 37 consecutive weeks, but then NOT paid for 12 consecutive weeks, then were paid again then they probably had left.

[anonymous-user]

The employment started in 2010 so the right not to be unfairly dismissed accrued after one year, not two.

[anonymous-user]

PS: count each week in which there is a contract of employment in effect, regardless of hours worked, Sickness does not break continuity.

Edited by anonymous-user on Monday 12th August 20:30

[matchmaker]

Breadvan72 said:

The employment started in 2010 so the right not to be unfairly dismissed accrued after one year, not two.

Thanks, BV, thought I could rely on you! The question in question is my son - he raised his voice to a manager in response to - as he saw it - her using inappropriate language to him. He shouldn't have done it and should have kept his gob shut. He was on the instructions of senior management suspended on full pay.

No verbal or written warning was issued. He was called in to a disciplinary hearing. He gave his side of things and apologised as on reflection he accepted he should have kept quiet. He also pointed out that he had only recently been diagnosed with a mental disorder which would have affected his judgement.

He was told that he would be informed of the outcome. The next day he received a letter informing him that the decision was that he was to be dismissed with immediate effect. The letter was dated the same day as the hearing (which was held in the afternoon)!

A couple of points - he has (had!) a completely clear disciplinary record with no incidents of any type. Also, the phrase "gross misconduct" has appeared nowhere.

Although I worked in the courts for 20 years, I'm no expert on employment law (maritime and fisheries law and commissary were my areas of interest). But on the face of it it appears to my (possibly biased) mind it is a stone clad unfair dismissal case.

I'd appreciate any views.

[anonymous-user]

Looks like a slam dunker. Time limit three months so don't delay.

[matchmaker]

Breadvan72 said:

Looks like a slam dunker. Time limit three months so don't delay.

Thanks again

He has an appeal hearing this week. I assume the 3 months runs from the decision of the appeal?

(PS - I have no doubt that the appeal will go against him. Skippy will be chairing it!)

[Jasandjules]

matchmaker said:

A couple of points - he has (had!) a completely clear disciplinary record with no incidents of any type. Also, the phrase "gross misconduct" has appeared nowhere.

So when he was invited to the meeting there was no mention that his employment could be terminated?

What did she say to him? What did he reply?

What have they said is the reason then that he has had his employment terminated?

[anonymous-user]

The three months usually runs from the initial dismissal and not from the appeal.

[matchmaker]

Jasandjules said:

matchmaker said:

A couple of points - he has (had!) a completely clear disciplinary record with no incidents of any type. Also, the phrase "gross misconduct" has appeared nowhere.

So when he was invited to the meeting there was no mention that his employment could be terminated?

None

Jasandjules said:

What did she say to him? What did he reply?

She told him that he was crap at his job. He told her that she was using unprofessional language and that it would not be tolerated in most workplaces.

Jasandjules said:

What have they said is the reason then that he has had his employment terminated?

That his behaviour was unacceptable.

He is still within the 3 month period. It however took a letter to his employer from CAB to get the appeal hearing fixed. The employer had done nothing for nearly a month, despite his appeal being hand delivered to them within 5 days of the decision to dismiss him. I'll just need to get him a solicitor now.

[matchmaker]

Well, it was the appeal hearing today. The original disciplinary hearing was held by the most senior member of staff - the owner and MD.

The appeal was heard by... his wife. We are waiting for the outcome with interest, but not much hope!

Did I mention Skippy in an earlier post?

[AMD87]

Hi matchmaker long time no speak hope things are well and you still have the vrs

Worth dropping Paulqv a pm as he's local to us and specialises in employment law, might be able to give you a few pointers.

http://pistonheads.com/gassing/profile.asp?h=0&amp...

[Condi]

Is it worth it for a 1 day a week, 0 hours job?

Surely there are plenty of others (bar job, tesco's etc) rather than staying somewhere which doesnt want you??

[matchmaker]

AMD87 said:

Hi matchmaker long time no speak hope things are well and you still have the vrs

Worth dropping Paulqv a pm as he's local to us and specialises in employment law, might be able to give you a few pointers.

http://pistonheads.com/gassing/profile.asp?h=0&amp...

Hi Andrew. Still have the vRS! Will drop Paulgv a pm - thanks.

[matchmaker]

Condi said:

Is it worth it for a 1 day a week, 0 hours job?

Surely there are plenty of others (bar job, tesco's etc) rather than staying somewhere which doesnt want you??

He's got two p/t jobs now. He, however (like his Dad) has a strong sense of justice and is even willing to pay out of his own pocket to go to an IT and get justice not only for himself, but for all the other poor minimum wage suckers who have been dumped on by this company and who couldn't do anything about it.

[matchmaker]

Appeal decision received today. Surprise, surprise, original decision upheld. However, they have now claimed that the reason for dismissal was "Gross Misconduct". At no time up till now has the phrase "Gross Misconduct" been used.

Am I right in thinking that a Tribunal will look very dimly on this increase in the "charge"?

[anonymous-user]

Probably, yes. Send a pre claim letter asap and get the claim in on time. Trashy employers such as this deserve a kicking from tribunals.

[matchmaker]

Update. Put in claim to Employment Tribunal. Referred to ACAS. Employer decided to settle. Result!

[NoNeed]

matchmaker said:

Update. Put in claim to Employment Tribunal. Referred to ACAS. Employer decided to settle. Result!

Nice one. It would have been good to see an employer like this in the dock though (not sure docks are used in these things but still)