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Contract terminated during probationary period

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  • Contract terminated during probationary period

    Hi everyone, newbie here and really need some help and guidance.

    started new job in January, training was poor and I was starting to regret having given up my safe and stable career in education. However, 3 weeks into the new job the employer had a meeting with me on Friday last week and advised me that things weren't working out and that they wanted me to leave with immediate effect. I received confirmation of this yesterday by email stating they would only pay me for the 8 days I worked this month.

    The contract, although not signed by me, states:

    Section 4 Probationary Period
    4.5 The employer may in its sole and absolute discretion terminate the Employee's probationary employment forthwith by paying the Employee a lump sum equal to 1 month's salary in lieu of any required notice together with any accrued holiday entitlement pursuant to clause 15.​​​​​​

    Now I've spoken to ACAS who think I've got very strong grounds to go for breach of contract if they don't pay me the notice period, but I haven't got a clue how to respond to the employer and I want to respond in such a way that they know I'm serious.

    Really didn't expect this outcome so early in the new role and feel thourougth let down by the employer. On top of that I'm desperately trying to find a new job and stressing about how I'm going to pay my bills at the end of the month.

    Now the wording is slightly ambiguous with the use of "discretion", but is this just on their part? Would really appreciate any advice on this!!

    Thanks in advance!!
    Tags: None

  • #2
    Sorry to hear about your situation.

    Since you have not been employed continuously for one month your employer does not need to give you any notice so you are reliant on that clause 4.5. It is worth responding to their email in regard to that clause and explain to not pay you in accordance with clause 4.5 would be a breach of contract and therefore you anticipate receiving confirmation that the payment will be made in accordance with that clause.

    In regard to the wording you make reference to "
    The employer may in its sole and absolute discretion",
    my interpretation is that the employer has discretion to terminate someone's employment immediately "
    forthwith"
    during the probationary period but in doing so they have to make the payment detailed.

    I do my best to provide good practical advice, however I do so without liability.
    If you have any doubts then do please seek professional legal advice.


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    You are braver than you believe, smarter than you think and stronger than you seem.



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    • #3
      Hi ULA,

      Thanks so much for your reply! So do I keep my reply short and sweet, perhaps mention I've spoken to ACAS and refer to 4.5 and hope for the best?

      Comment


      • #4
        I suggest you write something along the lines of:

        Thank for your email of xxx, confirming that my employment has been terminated with immediate effect and that you will only pay me for the 8 days worked this month, however I would refer you to clause 4.5 of my contract. You have clearly at your sole and absolute discretion immediately terminated my employment during my probationary period and as such I am entitled by virtue of that clause to "
        a lump sum equal to 1 month's salary in lieu of any required notice together with any accrued holiday entitlement ."

        I have been in contact with ACAS who have advised that if payment is not made in accordance with clause 4.5 then I would have a potential claim for breach of contract. I am sure that this situation is something that you would wish to avoid and therefore request that payment is made to me in accordance with clause 4.5. I look forward to your response and a speedy resolution to this issue.

        I do my best to provide good practical advice, however I do so without liability.
        If you have any doubts then do please seek professional legal advice.


        You can’t always stop the waves but you can learn to surf.

        You are braver than you believe, smarter than you think and stronger than you seem.



        If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

        Comment


        • #5
          You are an angel!! Thank you so much for all your advice!! Will keep you posted. This whole episode just feels like a bad dream and I've never felt so helpless.

          Comment


          • #6
            Best of luck with the letter and please do come and let us know how it goes.
            I do my best to provide good practical advice, however I do so without liability.
            If you have any doubts then do please seek professional legal advice.


            You can’t always stop the waves but you can learn to surf.

            You are braver than you believe, smarter than you think and stronger than you seem.



            If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

            Comment


            • #7
              Sent the letter by email at 5:30. The exact same time I got fired Friday last week...fingers crossed this goes my way!

              Comment


              • #8
                Hi again,

                Quick update. No response to my letter of 15th Feb. On 28th Feb they paid me only from 1st to 8th. Have now started early conciliation through ACAS. They have attempted to contact ex-employer on my behalf, but they have not engaged as of yet. Should get an update later this week. Fingers crossed.

                Comment


                • #9
                  Thanks for the update as you say fingers crossed you get a positive outcome with support from ACAS.
                  I do my best to provide good practical advice, however I do so without liability.
                  If you have any doubts then do please seek professional legal advice.


                  You can’t always stop the waves but you can learn to surf.

                  You are braver than you believe, smarter than you think and stronger than you seem.



                  If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

                  Comment


                  • #10
                    Hi all,

                    so I have received ACAS certificate for early conciliation and I am applying for tribunal for breach of contract. I am asking how much detail I should provide in my claim form I have written this so far:

                    I was employed from 14/01/2019 to 08/02/2019. My employment was terminated with immediate effect at 5pm on 08/02/2019. I was paid from 01/02/2019 to 08/02/2019. However, Clause 4.5 of my employment contract states that, should the employer at their sole and absolute discretion immediately terminate my employment during my probationary period, I am entitled by virtue of that clause to:
                    "a lump sum equal to 1 month's salary in lieu of any required notice together with any accrued holiday entitlement.". Therefore I am seeking payment in lieu of notice to the sum of £2916.

                    Do I need to provide greater detail or is this suffice?

                    Thanks in advance!

                    Comment


                    • #11
                      That says it perfectly. Not sure that there is much greater detail that you can provide.
                      I do my best to provide good practical advice, however I do so without liability.
                      If you have any doubts then do please seek professional legal advice.


                      You can’t always stop the waves but you can learn to surf.

                      You are braver than you believe, smarter than you think and stronger than you seem.



                      If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

                      Comment


                      • #12
                        Hi all,

                        Back with another update.

                        So applied to tribunal but still not been given a date.

                        Ex-employer has now got back in touch with ACAS saying they will settle if I can prove I had not started work on or before 8th March. This I feel is an admission of guilt and I don't believe they need to know this information as I am still due my payment in lieu regardless. Any thoughts?

                        Also makes me think that if they are prepared to settle I could potentially seek more if it went to tribunal...is this realistic or should I just take the settlement and be happy with a small victory? I feel they need to be taught a lesson!

                        Thanks in advance!

                        Comment


                        • #13
                          Thank you for coming back with your update.

                          Their clause specifically says that they can pay "...
                          the Employee a lump sum equal to 1 month's salary in lieu of any required notice..."
                          so in my opinion it is regardless of whether you get another job, they are effectively paying you in lieu of them giving you notice.

                          You could go back to ACAS with your interpretation of this point and say that you believe your case is strong based on 4.5 clause of the contract that you are entitled to your full notice. At the moment it is a negoiation and they have stated their opening figure. You ultimately have to decide whether there is a figure you are prepared to settle on without taking it to tribunal and see if you can get them to that point.

                          I do my best to provide good practical advice, however I do so without liability.
                          If you have any doubts then do please seek professional legal advice.


                          You can’t always stop the waves but you can learn to surf.

                          You are braver than you believe, smarter than you think and stronger than you seem.



                          If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

                          Comment


                          • #14
                            Hi All,

                            So, have made some further progress. I have received the draft COT 3 ahead of ET date in August. My understanding was that I am able to claim PILON without any deductions. However, the agreement states:

                            Without admission of liability the Respondent agrees to pay the Claimant and the Claimant agrees to accept the settlement sum of £XXXX subject to tax and national insurance in full and final settlement of all and any claims that the Claimant could bring against the Respondent...

                            Is anyone able to confirm if the settlement is subject to deductions ? Thanks in advance

                            Comment


                            • #15
                              Your clause 4.5 is effectively a PILON clause and if it had been paid at the time it would have been subject to tax and NI deductions. However it was not, the matter became disputed and it seems from your recent post they have now agreed to pay it and this agreement is being completed via a COT3.

                              In this respect the case of Goldman v Her Majesty’s Revenue and Customs (HMRC) is useful guidance. The employee’s contract contained a clause that said that if the employer terminated the employee’s employment, it would “make a payment in lieu of notice within 14 days of the termination date”.

                              When the employer failed to pay the PILON, negotiations commenced and eventually a deal was reached and set out in a settlement agreement. Despite the employee receiving less than his contract of employment contemplated, the tax tribunal found that, because the payment was made in the light of the contractual clause and the negotiations were based upon the enforcement of the PILON clause, the sum was taxable in the normal way.

                              So if tax and NI is being deducted and this is the figure in the COT3 agreement then I believe that it is correct.
                              I do my best to provide good practical advice, however I do so without liability.
                              If you have any doubts then do please seek professional legal advice.


                              You can’t always stop the waves but you can learn to surf.

                              You are braver than you believe, smarter than you think and stronger than you seem.



                              If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

                              Comment

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