Notice Period Following Probationary Period - Unfair Dismissal

[Ellwood101]

Good Evening,

Looking for a professional opinion on this matter as I have had conflicting legal opinions...…

I took up a relatively senior position last year within a privately owned house builder. After only just over three months with the business, I realised that the issues they had brought me in to address were not likely to improved due to their own business decisions

I therefore sent my resignation via email to one of the business owners, stating my reasons for leaving and offering to work 1 weeks notice, as I understood at the time to be my contractual notice period as I thought i was still within my initial 3 months of employment and within my probationary period. The following day, I received a TXT message from one of the Directors, requesting that I return all company property

I interpreted this rather cold response to be that the company wished that I leave with immediate effect and did not want me to serve any notice period.

On further reference to my contract of employment, I realised that I was now outside of initial probation period of 3 months by 6 days. My contract stated that following `satisfactory completion` of probation, my notice period extended to 3 months. A clause for extending the probation period by a further 3 months by the employer was detailed, but no reference was made to a probation hearing that was to determine successful completion of this initial period.

As the contract of employment stated a 3 month probation period, had a mechanism for the employer to extend by a further 3 months to further review employee performance and did not mention a final review or assessment, it was now my understanding that I had completed my probation and would therefore be entitled to work or be paid in lieu for 3 months. Also stated in the contract was that resignation by email was not considered received (even though I had been sent a TXT response to above email resignation)

With the above information, I returned my company belongings and hand delivered a written notice letter stating that I would work `any contractual notice period required`. I had interpreted the above TXT reply that the company wished for me to leave with immediate effect, so I returned home.

I received a letter the following day or so from my employer stating that I had left my position and had not worked my notice period of 1 week and that a deduction would be made from my final salary payment. I responded and sent a copy of my original email resignation and a copy of the TXT sent to myself which was interpreted as consent to leave the business with immediate effect. I also reaffirmed the content of my written resignation (which they had confirmed receipt there of) stating that I had offered to work any and all my notice obligations. I also stated that I now believed this to be 3 months and not 1 week

The response from my employer stated that as I had not received a probationary hearing, I had not therefore completed my probation and was only entitled to 1 weeks notice, despite being employed in excess of 3 months. Despite being in receipt of the TXT message from my employer, they still considered that it was my decision to leave the business without notice (despite 2 previous offers to work any notice period)

ACAS has not been able to resolve and have issued their certificate of early mediation

Should I proceed to tribunal, what will be the likely outcome??

Thank you

[ULA]

Did the probationary period clause expressly state that you will not be deemed to have passed your probation unless you receive written confirmation to that effect from the employer? If not, then the probationary period may inadvertently lapse and the employer will not be able to extend the probationary period. If the contract did not, then the fact that no hearing, as argued by the employer, was held could be irrelevant and since you had not heard to the contrary the right to extend had lapsed consequently your contractual notice has become 3 months.

So, assuming that your probationary period was not extended when you handed in your notice then you should have given the company 3 months’ notice. In addition, since in your contract it expressly stated that resignation by email was not considered to be received then this should have been given in writing by letter. Therefore, in this regard the handing in of your resignation did not accord with your contract.

However, the company themselves have not dealt with the situation very professionally. It seems rather than writing to you confirming your resignation had not been received not in the correct manner and that since your probationary period had lapsed you were due to give 3 months’ notice they fired off a text message, from which everything else appears to have unravelled. A text which arguable could be construed as them asking you to leave immediately, why otherwise would you be asked to return the company’s property.

You at least did the right thing by offering to work the notice be it deemed to be one week or 3 months.

Did the company deduct one week’s pay from your final salary?

If so are you claiming this to be an unlawful deduction of wages?

Is this the basis of your claim?

What has been the claim by the employer when dealing with ACAS?

[Ellwood101]

Good Evening Ula,

Thank you for your response and views

My contract makes no reference to a probation hearing or that conformation in writing of successful completion of this period will be confirmed. It clearly states that the probation period is 3 months and has a clause to extend for a further 3 months within the initial 3 months. I interpret this to be that the probation is time based and not assessment based

Regarding my initial notice via email (sent on Saturday 24th November `18), I offered to work what I then thought to be my notice period of 1 week, which I now believe to be incorrect. I received the TXT (Sunday 25th November `18) requesting that all company property be returned and as you commented above, I understood this as the company wanting me to leave immediately. On Monday 26th November `18 I drove into my place of work, returned their property as requested and handed in a letter of resignation, in line with the terms of my contract, again stating that I would serve `any or all of my notice period`. I then returned home and received acknowledgement of said letter

During all remaining correspondence I have offered to work my notice period and stated that I believe it to be 3 months

Yes, the company deducted 1 weeks pay which I believe definitely incorrect and unlawful

My claim via tribunal (not yet submitted) is to be for 3 months salary in lieu of notice, as I offered to work any notice and evidenced via contract my entitlement to be 3 months and not 1 week

My (ex) employer to ACAS is stating that a probation hearing was not carried out so only 1 weeks notice is due, despite no reference to this in their contract. They also seem to doubt that I have a copy of the TXT (even though ACAS sent this to them) and have therefore stated that I left my position with immediate effect without serving any notice period, hence the 1 week deduction in pay


…..interesting fact that didn't mention in my original post.....My contract states that `on successful completion of your probation period, you will be invited to join the company pension scheme and private medical healthcare`. My final wage slip shows both employer and employee pension deductions and I am in receipt of the written invite to join the healthcare scheme. Surely this is proof that satisfactory completion of my probation was achieved and acknowledged by the company with this action??

[ULA]

You said you received acknowledgement of the letter of Mon 26th Nov did this confirm the arrangements for your final pay and if so did it mention any deduction in regard to non-working of your notice period?

The fact that you offered to work either a week or 3 months notice is in your favour particularly as it is written and therefore evidenced., also make sure you have stored a screenshot of the text message.

The invitation to join the healthcare scheme is of more significance as this was dependent upon successful completion of your probationary period. All companies by law have to auto-enrol staff into a company pension scheme which they can postpone but only for 3 months from the start of joining the company.

If ACAS have completed their early reconciliation unsuccessfully then the next step is to make an ET claim

[Ellwood101]

Hi Ula,

Thank you again...

Yes, their letter in response to my written notice on the 26th did detail the 1 weeks reduction in pay due to `not working any notice period`, in my employers opinion

It looks as if we will go to the employment tribunal to resolve. Would the correct legal term for the case be `Unlawful Deduction of wages`?

[ULA]

Yes it is an unlawful deduction of wages. Also did they pay you for any accrued holiday up to the date of your termination that has not been taken? If not then that needs to be added to the claim.

If you need any more support with your ET1 then just ask.

[Ellwood101]

Thank you again Ula

[Ellwood101]

Good Evening Ula,

Following on from the above thread, I have taken my case to tribunal and have received an August hearing date. in the mean time, I have taken the case to a local solicitor for their opinion and advice. They looked at the evidence provided and offered a no win no fee service on 25% +VAT

I thought this through and after a while, signed and returned the documentation that the solicitor had put together and sent to my home

This week, he has advised me that should I loose the case, the court could award costs to the other side. He then added that I would be responsible for his costs too!! I quickly reminded him of his no win no fee agreement that I had previously signed

He responded by saying that he was now not willing to proceed on this basis. I referred him back to his own agreement and stated that I was not about to deviate from this

In short, is the solicitor able to `back out` of an agreement proposed by themselves, or are they bound by some sort of legal responsibility??

I`m a little disappointed to say the least...…...

[ULA]

Is there any chance you can post up a redacted (for personal information) a copy of the agreement?

[Ellwood101]

Morning Ula,

Please see attached as requested for your comments

Thank you

[ULA]

Having reviewed the documents I will remove them as there is still potentially identifiable information.

It is clause 17 of their letter of 26 Feb 2019 and the clause Terminating the Retainer in the Client Care Brochure which states that "We may decide to stop acting for you only with good reason ..."

I would suggest that you go back to them and ask then to confirm to you precisely what the "good reason" is by which they are relying on to terminate your retainer.

[Ellwood101]

Thank you Ula

[Ellwood101]

Evening Ula,

Please see correspondence from solicitor. His motives and `good reason` for not being willing to continue representing me would appear to be financial, despite the no win no fee deal proposed by himself...……..The advice to settle came before the respondent`s witness statements were received, so no further evidence than at our initial meeting. Is the solicitor in breach of any codes of representation??


, a meeting is necessary to discuss funding as under the current circumstances I do not feel as though I can continue acting for you on a no win no fee Agreement . I look forward to seeing you on Monday.

Thanks very much


Dear



Thank you for your email of 22^nd July but unfortunately, given that my colleague has recommended acceptance of their offer and you wish to go against the advice I am no longer able to offer you a no-win no-fee agreement. Therefore, any further work undertaken on this matter will be at the chargeable rate of £150 per hour.



Yours sincerely

[ULA]

I may now understand why they have withdrawn from the "no win, no fee".

In points 2 & 3 of their client care letter they point out that there are risks with the case and that if reasonable offers are put forward to "compromise the claim" the claim they should be considered seriously.
In their correspondence to you there is reference to an offer being made by the respondent which they have recommended you take, which I presume you do not want to do and you want to continue with this to Tribunal.

A good reason for them to stop acting for you is that they have recommended that you take the settlement offer, given their view on the risks of the case if it went to Tribunal and you have decided that you want to proceed. The offer of a reasonable settlement which is not taken is not always looked favourably by the Tribunal and based on your solicitors view that there was some risk already but for which they were still prepared to offer a "no win, no fee" arrangement, rejection of a settlement may well have tipped their risk level for continuing on this basis.

[Ellwood101]

Thank you again Ula for your feedback

I get what you are saying. the respondent has offered a £300 settlement on a claim for £16300.00 for unpaid notice period.

I have just been looking back at the emails I have previously sent the solicitor repeatedly asking him to confirm that he is indeed acting for me. Since he made the no win no fee deal, it appears that he immediately turned around on this offer. it does seem an unreasonable get out to claim a `reasonable` offer has been refused?

I have asked him to clarify his `good reason` but he seems to no longer be replying to correspondence

Is there anything that I can do to?