Breach of Contract for not following disciplinary procedure

[Axle81]

Hi. I was recently dismissed from my company (12th March), the reason stated in the letter was “poor performance”.

I was given my one month’s notice as per my contract and put on garden leave. I’ve worked there since January 2024 and I’m a Sales Director (though not board level)

Other than a couple of empty threats from my line manager during general 1to1 meetings, though the lattest on 5th February implying of a certain target was not met by the end of the quarter they could look to terminate my contract.

However, nothing sent to me in writing, no written warnings, no performance improvement plan, in fact not one single email to say he was concerned with my performance.

I am one of 2 sales directors and I had won the most business in 2024 of all of us and was very close to signing a lot more.

On 12th March I was called into a Teams meeting without warning, the Head of HR was in attendance and I was dismissed on the spot.

I then received a letter attached to an following up the conversation, giving me my 1 months notice and reason stated being poor performance.

At the time the meeting was sprung on me, I was forced to move a key call with a client I was days away from closing as a new customer. The timing of this seemed almost manufactured and clearly obstructive, he was well aware of the importance of the client call and refused to move this meeting, which turned out was to dismiss me.

Regardless of the intentions behind my dismissal, I believe they are in breach of contract, and here’s why.

My contract clearly states “The (company name) disciplinary procedure will not apply whilst within the probationary period”

Now I’d passed probation almost a year ago, so now that was out the way the contract clearly implies that a disciplinary procedure for employees out of probation does exist, even though it’s not set out in my contract as to what that is. It is therefore contractually binding, as the contract does not state that disciplinary procedure (wherever that may be held) is NOT contractual.

So anyway they haven’t followed any sort of fair process that would constitute a disciplinary procedure and is in direct contraclst to the ACAS recommended procedures for dismissal.

No written warnings, no structured meetings, no performance improvement plan, no clear timescales and expectations - and then also no right to be accompanied to the dismissal meeting or right that appeal.

I therefore believe they have not followed the correct display procedure (or any) and there is a clear breach of contract.

They also refused to provide documented evidence of my performance reviews and written warnings (I know why, because there weren’t any), so as part as the formal grievance I’ll be submitting I’ll also send them SAR under GDPR, which may also uncover whether my dismissal was somehow orchestrated and obstructive from me essentially closing out my given targets for the quarter.

[atticus]

Having started with this company in January 2024, you have not accrued the 2 years' continuous employment to enable you to claim unfair dismissal.

You appear to have been given notice in accordance with your contractual entitlement.

[Axle81]

It isn’t unfair dismissal it’s breach of contract, which doesn’t require 2 years service.

[ULA]

Your contract states that "...disciplinary procedure will not apply whilst within the probationary period". Accepting you are not in your probationary period, does the company's disciplinary process form part of your contract of employment. Typically such a policy is not contractual. You will need to refer to the policy to ascertain this.

[Axle81]

My understanding is unless the contract explicitly states it is not contractual, then it’s taken that it is. Nowhere does it say that’s it isn’t.

[ULA]

The contractual status of a policy is normally determined within the policy itself or by a clause in the contract that explicitly states that XXX Policy forms part of your contract of employment.

[Axle81]

I’m not so sure
In practice

Whether the terms of an HR policy are contractual will depend on:

• The wording of your policies and contracts;
• Whether implied contractual rights have arisen (which will depend on the circumstances, for example, the policy terms and extent to which they have been followed in the past).

It is possible for a policy or handbook to be largely a matter of guidance and good practice but with specific provisions having contractual force.

Given the risks involved in amending a contractual policy or procedure unilaterally, employees' consent will be required to make any changes. This is something employers will usually want to avoid. To reduce the likelihood of policy terms having contractual status:

• Include a clear statement at the beginning of the policy or procedure that it is non-contractual;
• If the document is drafted specifically as management guidance - say so;
• If possible, replace words like 'will' and 'must' with 'may';
• Include a statement that the policy or procedure may be adjusted depending on the circumstances;
• Include a unilateral right to vary the policy itself.

[atticus]

If you prefer what ChatGPT tells you, that's fine.

[Axle81]

It wasn’t from Chat GPT. Thanks for your opinion on the matter.

[ULA]

As stated at my post #6 policies are normally set out in a handbook and are generally non-contractual for the very reason of allowing employers to make changes and amendments without requiring the consent of employees (here I am talking about non unionised companies for clarification, as there may be specific arrangements for negotiating changes to policies in a unionised environment).

If a policy is to form part of your contractual terms that will either be stated directly in the contract of employment or in the policy itself. If there is no reference to this being the case in the contract and the policy does not reference it being contractual it may even say it is non-contractual which is why I advised you checked the Disciplinary Policy to ascertain whether or not it is.

If is it non contractual and without a term in the policy to state it is contractual the employer is not legally bound to follow the disciplinary policy, particularly as you have less than two years service, therefore no breach of contract claim arises.