pilon confusion

[ULA]

Your contract states 3 months notice so no statutory notice can not be added to your termination date to make the relevant date is has to be your contractual notice. The only time this could apply would have been if your contractual notice was less than the statutory minimum notice.

[wayne d]

Hi thanks Ula, didnt know relevant date was the longer of either statutory or contractual notice. Amethyst my start date was 11 June 2013. Thanks
Wayne

[mariefab]

You said earlier that you "told" the employer that you wished to affirm the contract.
When did you do this?
Did you do so in writing?

[wayne d]

Hi Mariefab yes I sent a document detailing the nature of my appeal points in which I stated I wished to affirm the contract as I believed it had not been terminated in accordance with my contract. That is the pilon clause had not been invoked properly by stating which part of my contract was being used to terminate my employment. That's my understanding of the requirement of using pilon according to Geys. You have previously pointed out my pilon clause if invoked properly does not state it terminates my contract. Do you think there is anything else I should consider? Thank you
Wayne

[mariefab]

I just wanted to check that you'd affirmed the contract in writing because of the old adage 'if it isn't written down it didn't happen'.

Other thoughts...

Your contract says, This contract will be terminated by either party by giving 3 months notice in writing.
Unlike most contracts that say "can".
Unlike the Geys case I believe you may legitimately argue that there is a 'conflict' issue.
See p22-24 below.

http://www.bailii.org/uk/cases/UKSC/2012/63.html

I think that one of the most important issues in your case is that in the termination letter it states, "you will not be required to work your contractual three month notice period therefore the company will make a payment in lieu of your notice."
Assume, for the moment, that the clause in your contract that says,
"The company reserves the right to pay salary in lieu of your notice whether the notice is given by you or the company."
does give them the right to terminate the contract by making a payment.
What they wrote indicated that the reason for making the payment was because they didn't require you to work your notice period.
They didn't terminate your employment by exercising that contractual right here. They didn't mention the reserved right at all.
See also Geys p57-60.

Here's a relevant ET summary:

https://www.viberts.com/articles/whe...erals-limited/

Although an ordinary Employment Tribunal judgement doesn't have the force of the higher Courts it gives you an idea of how a Tribunal may approach your case.

The most important issue for me is that the Company shouldn't be permitted to benefit from there own deliberate wrongdoing.
The only reason your employer could have for claiming that because they made a PILON your employment ended earlier is to save themselves money at your expense.

This wasn't a summary dismissal it was a dismissal by reason of redundancy.
It's not uncommon for employees made redundant not to be required to work their notice period and to receive a payment instead . However most employers would still correctly calculate redundancy payments using the date that the contractual or statutory notice period (whichever is longer) would have expired as the 'relevant date'.

[wayne d]

Hi Mariefab,
Thanks again for taking the time & effort to help me I truly appreciate it, the above information is really useful. In notifying my employer in writing that I wish to affirm the contract where does this leave me from a legal standpoint i.e would the contract be seen as still in running in the eyes of the law should the ET uphold my claim to unlawful dismissal if that's the charge as such ? Bearing in mind the company have refused to engage in discussions about a severance deal I would like an idea if this gives me any leverage as I've now contacted ACAS to try early conciliation & if no joy I will take on to the ET. Many thanks

Wayne

[mariefab]

I don't understand the question.
Where does 'unlawful dismissal' come into this?
Do you mean unfair dismissal?
Are you claiming that you shouldn't have been selected for redundancy?

[wayne d]

Hi no I mean is the contract still in place as I've affirmed the contract in writing and is this likely to give me any leverage as the company has not terminated my contract in accordance with the contract. My aim is to recover the additional 1 year of redundancy pay that has not been paid as a result of an incorrect relevant date having been used to calculate service length and the deduction of holiday pay. In addition due to the process being,I believe, unfair in some aspects I may not have been selected so wish to pursue a settlement amount in lieu of this. That's a whole subject area in itself and much as I would appreciate advice on this but I've called on enough help around pilon and holiday pay deductions. Thanks again
Wayne

[mariefab]

I agree that the matter of a potentially unfair dismissal would be best left to another thread, should you decide to pursue it.

If this gets to the stage of an ET claim, I suggest that you avoid using the phrase 'unlawful dismissal'. Stick to phrases like 'the employer was in breach of contract' instead. (If you like I can produce a draft for your ET1 for this and your holiday claim.)

Only an Employment Tribunal can decide how long your contract remained in place. I can only give you my opinion based on the information you've given on this thread.
That said, consider the 3 rules required by Geys to effect a PILON termination.

1. Notify the employee clearly and unambiguously that the employer is terminating the contract of employment and that it is doing so in accordance with the relevant PILON clause contained in the contract.
2. Specify the date on which the termination takes effect.
3. Notify the employee of the date upon which the PILON was made or will be made.

Your employer only complied with 2. So, your employment did not terminate your by PILON.

Going back to the terms of your contract:
1.This contract will be terminated by either party by giving 3 months notice in writing.
2. The company reserves the right to require you not to attend or undertake any or all of your duties during your notice period provided that you shall be paid your full salary for the notice period.
3.The company reserves the right to terminate this agreement if you commit serious material or persistent breach of company policy or if you are guilty of grave misconduct or willful neglect in the discharge of your duties. In such events summary termination of this agreement and your employment will be served to you in writing.
4. The company reserves the right to pay salary in lieu of your notice whether the notice is given by you or the company.

3 obviously doesn't apply.
4 also doesn't apply for the reasons above.
So, that leaves 1 and 2. both of which are entirely consistent with the termination letter you received.
You didn't accept the breach of contract, instead you affirmed the contract.
Therefore, your employment will terminate at the end of your contractual 3 month notice period.

One caveat. I don't know whether your employer has responded, in writing, since you first made your objections known to them.
Have they? If so, exactly what did they write?

[wayne d]

Hi Mariefab thanks again for your assistance. I wrote a series of points giving the reasons I was appealing my redundancy and sent these in a document to the company. Included with my appeal points I stated I believed the company were in breach of contract as I had not been properly dismissed in accordance with my contract and employment rights. I went on to say for this reason I wished to affirm the contract until termination was done in accordance with the terms of the contract and employment law. I pointed out that this would affect the final payment and would need to be adjusted as the end date of employment had not been established. I went on to say the central issue was the relevant date. I then stated the 3 requirements needed to correctly invoke a PILON clause which are as you have listed. I pointed out that my contract does not state that payment in lieu terminates the contract.

The company replied by sending back my appeal points document with text they added as a reply under the section detailed in the above paragraph:

"We refer to letter dated 16 the April explicitly stating your date of temination to be 19th April. You were paid until 19th April and termination was stated in writing as per the terms of your contract. It was also explicitly stated in this letter that your notice would be paid in lieu as of the termination date. This has been executed in line with your terms and conditions of employment. Specific details of your redundancy pay was outlined in your termination letter, however, for clarity we have provided a full up to date detailed breakdown of your final payment for your information."

I was actually paid the PILON 7 days after the termination date so I imagine if my claim fails I'd at least be due an additional week pay if the PILON were deemed to have taken effect on the payment date.

Finally I would be delighted if you were happy to produce a draft for my ET1 this would help me so much. Very many thanks

Wayne

[mariefab]

Termination Letter dated 16 April
Following meeting on x date the company can now confirm the outcome. Your role was put at risk of redundancy and you have been in consultation about this. I can now confirm you have been selected for redundancy. The company has not been able to find alternative work that we can offer you. Your employment will terminate on 19 April 18 (y)ou will not be required to work your contractual three month notice period (t)herefore the company will make a payment in lieu of your notice. You are entitled to x amount statutory redundancy payment for your 4 years service and this will be paid in your final instalment of pay. You can appeal this decision in writing within 7 days of receiving this notice.

Can you check the original and let me know if either of the bracketed letters are Capital letters?

Also, what is the title above the section in your contract dealing with notice and PILON?

Breaking the response down...
We refer to letter dated 16 the April explicitly stating your date of temination to be 19th April.
Fine, they complied with Geys rule 2.

You were paid until 19th April and termination was stated in writing as per the terms of your contract.
The only relevant contractual term is the one that says,
1.This contract will be terminated by either party by giving 3 months notice in writing.

It was also explicitly stated in this letter that your notice would be paid in lieu as of the termination date.
Nope, nothing like the phrase 'your notice would be paid in lieu as of the termination date' , appears in the termination letter.
I don't know what they think it means but it couldn't possibly be interpreted as meaning, the Company is exercising it's contractual reserved right to terminate your employment by making a PILON.

This has been executed in line with your terms and conditions of employment.
Ha! I don't think so.

So, it's all good. I was concerned that they might have realised their earlier errors and corrected them
I remember a case where an employee was sacked with notice for alleged misconduct. When he appealed the employer realised that by the end of the notice period he would have the 2 years service required to make an unfair dismissal claim. So, they sacked him again summarily (without notice.)

[wayne d]

The letter reads exactly:

"Your employment will terminate on 19th April 2018. You will not be required to work your contractual 3 month period therefore the company will make a payment in lieu of your 3 month notice."

The title heading the section around notice & PILON is - "Notice"

I suspect they're not as smart as the case you came across previously as I've even spelled out to the company how to serve a PILON in my appeal document & they still disagree. Thanks Mariefab

Wayne

[mariefab]

Good. I was hoping that the Y was a Capital because then it combines, in one sentence, a perfect description of the contractual terms 1 & 2.

I'm surprised that the title of that section is 'Notice'. I was expecting it to be 'Termination of employment' or something similar.
Is the Notice part a subsection of a section headed Termination?
Or, is there different section in your contract that deals with termination?
If so, does that section also have a clause reserving the right to make a PILON?

[wayne d]

No subsections it's just one section entitled "Notice" which deals with 5 points around all aspects of notice and termination - 4 I've shared previously the 5th states "the company may require you to take outstanding holiday entitlement during any period of notice". Thanks Mariefab.
Wayne