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Bruce McQuillan
Member - 9 posts
We recently had to let a new start go during her probation period. The new start had not approached us for a job but we had approached her via email im not sure that makes any difference.
The Letter of Offer suggested a three month probation period at the end of which a review would take place.
The contract suggests we can dismiss at any time during the probation period with one week notice.
The former employee is now suggeting that at offer stage we had agreed that due to the nature of the appointment a three month period would be required to build a sales funnel and that since we dismissed her two months in she is due pay in lieu of notice up to that three months and not one week as suggested by contract.
My partner dismissed her and did not follow any procedures as such simply called her into an office and apologised that this was not working out. Not perhaps the view i would have taken.
What notice period applies ? One week ?
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Craig Stuart
Member - 85 posts
When you say that the 'contract suggests we can dismiss... with one week notice', how strongly is it suggested? You also hint that there was a verbally agreed change to the usual contract offer in this case. A verbal agreement should stand; morally I would feel obliged to abide by a notice period of a month.
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Martin Brewer - Mills & Reeve
Online advisor - 84 posts
Two things are being confused. The 3 months the ex-employee refers to is clearly the 'probation' period. Subtract the two months worked from the three months probation period and hey presto you get one month.
But from what you say the contract you entered into has a one week notice period. It is therefore the one week notice which applies. There simply is no 'one month' notice period.
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James Fairchild
Member - 256 posts
Martin,
On my reading, it appears that the employee is suggesting that a contract was 'offered' based on a three month period (no more, no less) AFTER WHICH a review would take place. She is saying that the fact the review happened earlier is irrelevant and that she is entitled to be paid for the duration of the initial contract period.
Considering simple contract law of offer and acceptance, then unless this offer letter makes reference to being "subject to the company's standard terms and conditions" then she may well have a point and be able to claim wrongful dismissal.
To save yourselves the cost of tribunal, you may want to give consideration to paying her until the date 3 months after her start date. Don't forget holiday pay!
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Colin England
Member - 55 posts
The employer in this case must revise the wording of the Contract of Employment - it is no good saying "the contact suggests". The Contract is just that - a legally enforceable contract and must be worded so that there is no doubt what it means.
In this case the employer might well consider that the easiest thing to do is to pay the employee off with what she is asking for - and get her to sign a legally enforceable agreement not to persue her claims further. The alternative is to become embroiled in long and expensive arguments and maybe court or tribunal action.
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Colin England
Member - 55 posts
A further comment if I may ---
"My partner dismissed her and did not follow any procedures as such simply called her into an office and apologised that this was not working out. Not perhaps the view i would have taken."
To dismiss someone without giving them notice or the opportunity to explain their position would appear to breach the employees human rights and also be in breach of the Statutory Proceedure. Both these breaches are actionable by the employee.
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