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Must I accept reinstatement if my fixed term contract is termianted early?

 
Must I accept reinstatement if my fixed term contract is termianted early?

Hello,

I had a 2yr fixed term contract of employment. My employer terminated this agreement 20months into the contract. So I have 4 months remaining. In my appeal against the wrongful/unfair dismissal (did not follow statutory dismissal procedures)I ask that they pay me until the end of my contract. 10 days later the appeal manager has agreed I was unreasonably dismissed and everything about the process was wrong.

I believe they are on Monday going to say I can be reinstated. My question is must I accept? They caused me a lot of stress/anexiety for months, I no longer have faith in the employer.

I believe that because they dismissed me and terminated by contract early they should have to make good on the contract with out be having to be reinstated.

Advice very much appreciated. Any other information you require please ask.

Thank you.

btvs2000

25/04/2009 16:30:49

addtional info

in my appeal letter, i did not request reinstatement, i requested that they pay me until the end of my contract. Therefore, leave me in the same financial position as I would of been under the contract had it not been wrongfully terminated earlier. No more, no less.

btvs2000

25/04/2009 17:55:21

I'm afraid that the fixed term contract is a bit of a red herring here. You are in exactly the same position as any other employee who has appealed against a dismissal and won - you are entitled to be reinstated and your lost wages paid to you, and nothing more. If you refuse to accept this then your only option is to resign and take the risk of a constructive unfair dismissal. But if you do this and it goes to tribunal, the burden of proof that you had no possible other choice than to resign will be down to you - the employer does not have to prove anything, since "the system" has worked in that you appealed, the appeal was upheld and you have been given your job back. If you decide to go down this (not to be recommended) route, then your claim would be exceptionally limited by the fixed term nature of your contract in that your future potential losses are not significant, so you are unlikely to get much interest from a solicitor and will likely have to do this on your own. Possibly the employer would settle rather than face the cost of the tribunal, which could be significant on legal fees alone. But possibly they may not. It isn't ever a route that I would recommend, and certainly not without legal advice - but in this case I can't say that the potential expense of that advice would be worth it, even if you won.

For what it's worth, I'd say that if you need the money, I'd recommend going back for the remaining 4 months, rather than take the risk. But that's down to your decision.

shikahra

25/04/2009 21:19:03

thanks

thanks for clariying the situation. It is what I expected. I am amazed though, that an employer can drag you through this unpleasent process and then suddenly realize during the appeal process that in fact they had no right and did wrongfully dismiss you....then simply say come back to work...and if they do that, there is little choice for you in the matter (except constructive dismal, which no one seems to recommend).

I was planing to sue for wrongful dismissal on the grounds of breach of contract (early termination of the fixed term agreement) through a county court....

The system is definately unjust here...I will think over my options.

Thanks again and for your quick reply.

btvs2000

25/04/2009 21:38:09

sorry one last question

Would the fact they wrongfully dismissed me and that the process took over 3 months and during this time my training was cancelled and i was banned from attending complusory away days etc...there explanation was that HR did not want to spend money training someone who would be leaving soon. (i have all this in emails).

Would this be grounds for constructive dismissal? (i understand you dont recommend this route)... i.e. how can i possibly go back to work for an employer who dismissed me and carried out the above.

thank you.

btvs2000

25/04/2009 21:54:50

I totally understand how you feel, but I still couldn't recommend it. If you turn the situation around, and think about if they had had grounds to dismiss, these reactions would have been justified - and until you won your appeal, that was the situation, like it or not. It certainly doesn't make a case for you.

Constructive dismissal is something that I would never recommend - most cases loose, and that is after the sifting process that gets many claims out of the way before tribunal. And the fact is that although most people fail to understand this, the purpose of employment law is to keep people in jobs (not that it does a great job of that) and tribunals are part of that process. They are also subject to many external drivers which are not the subject of law. Right at the moment, for example, my colleagues and I are noticing a greater reluctance to "reward" people for resigning, even in circumstances much more dire than yours, because they are mindful that in an economic downturn, a job is better than no job. Obviously it is hard to pin down this sort of sea change, but quite a few of my colleagues spend more time in tribunals than the average tribunal panel member - so I'd take their word for it!

If they offer reinstatement rather than paying you off, there's nothing to say that you have to work very hard! And at least it is a breathing space with income to secure another job with a clear record, so you could look at it in a totally utilitarian way. Four months isn't very long, and I assume that you will have some holiday entitlement to shorten it a bit more. It could be a lot worse. You could be stuck there for ever!

PS - I hate to bring this up, but I suppose I had better. If you have been out of work and claiming benefits, you must inform them if you are reinstated as they will want to claim back the benefits payments from the repaid salaries. If you don't, this is benefit fraud, and you could land deeply in it if they find out - which they often do, especially if you had to claim again in four months, when all your employment records would be checked again. This is NOT the case if you are not reinstated but made a compromise agreement, although, depending on how much it is, you may have to declare it. I'm not up to date on the benefits regulations, but I am certain about the the first bit - it is also true of tribunal awards.

shikahra

25/04/2009 22:22:59

thank you

thanks again. i have slept on it and will just bare the four months. my dismissal end date is tomorrow, so actually if they offer reinstatement and i start again tuesday, then there will be no gap etc. I have also not signed on yet, because i was still being paid until tomorrow, so no issues there.

This is a great forum, keep up the excellent work.

Cheers,

btvs2000

26/04/2009 09:25:38

Hi, This is a very similar query

I am in the same situation, my 1yr contract got terminated after 6 months. I had an appeal hearing which the company said they would reply with in 10 days and the 10th day also happend to be my termination date. No reply was recieved so I found a new job and now they want to reinstate me and i am contractually bound to a new job. Where do I stand? at the moment i am filling out the forms for an ET.

John Smith

21/12/2009 20:52:32

I'm afraid that there isn't enough information that is relevant to advise you. Like why are you making an ET claim as you can't claim unfair dismissal for service less than 12 months? So what are the claiming.

But fixed term contracts can be terminated fairly within the term of the contract if there is a notice provision - and unfairly if there is less than 12 months service as there isn't a claim you can make for unfair dismissal.

Purely on the matter of reinstatement, it's still a bit blurry without more details, but it is up to you whether you accept it. You are entitled to be paid up to the date of your new termination - so if you refuse reinstatement, up to that point. And obviously you should also get any accrued entitlements to that date like holidays. But based on these sketchy details I don't see that there was ever a tribunal claim that was valid, and there certainly isn't now since you have appealed, won and don't want the outcome! Since you have been reinstated and have lost nothing, and have another job, there would be no award for a tribunal (assuming you can make a claim) to make - unless you have missed out something really crucial like unlawful discrimination from your post.

shikahra

21/12/2009 21:08:51

Hi Shakira

The company i work for have breach due to them terminating early as well as I assume they treated me less favourably act 2002 where it says I should be treated equally to my colleagues. The company advised I was terminated for reduction of work but I was the only person subject to termination of a department of 12 workers. So if I have a new job does that mean I cannot claim the remaining 6 months?(even if my pay is a lot less). I also raised few other greviances against the manager like he mislead me on the interview and the contract initially was due to be for 6 months which I rejected and then he offered me 1yr and after 6 months they terminated my contract.Manager also advised the department was increasing not decreasing. In the apeal hearing I advised I would not like reinstatement as I had raised greviances against the manager and the trust of the company had been broken. The other point is if i was terminated for work reduction why would they reinstate if there was no work to perform?. Can I go to ET to claim the remaining 6 months? as I feel the company acted in a vindictive manner offering 1yr contract and only have intentions of keeping me for 6 months. Sorry if i am not so clear as I dont know how the whole system works. Thank you for your quick response as well.

John Smith

21/12/2009 22:05:32

Hi

does ET not deal with Breach of contracts? Also reinstatement was offered after I was terminated

John Smith

21/12/2009 22:07:42

Just to add

I was on a fixed term 1 year contract

John Smith

21/12/2009 22:14:06

shikahra

appologies for misspelling your name

John Smith

21/12/2009 22:18:25

Don't worry about the spelling - most people get it wrong! But I think you are missing my point(s). If the contract had provision for ending it - notice, in other words - regardless of the fact it was for 12 months, then there is no way you can claim breach of contract. Only if it was fixed term for 12 months AND there was no notice clause within it. But then, they have now not breached the contract, becasue they have reinstated it anyway. So there is no breach for the tribunal to rule upon. Of course, if there is no way to terminate early (notice) - then YOU can't refuse reinstatement either - or you will be breaching the contract. You might claim that there has been a break down of mutual trust, but I think you are really reaching here, and I doubt it would stick - otherwise why appeal when the obvious outcome of an appeal against termination is reinstatement? I really don't see this winning unless you had no provision to terminate the contract on either side.

shikahra

21/12/2009 22:52:45

Reinstatement following dismissal

If an employee is reinstated after an appeal hearing held within their company are they entitled to payment?

quinn007

03/01/2010 21:34:25

Assuming that this is a reinstatement in law - that is, that they have been reinstated to their old job on a continous service basis - yes. But there are cicumstances where the answer may be no. But since there are no details here it's impossible to say definitely.

shikahra

04/01/2010 12:24:49

reinstated after probation period ending

I HAVE just won my appeal through a board of governers at a school i have been working for a year.the decission was made by my manager and headmaster after my probation period ended in december.all the things that was put in my review for reasons not offering me employment had alot to do with the fact of me making a formal complaint about my line manager,since doing this i have been through victimization and forced to work under very stressfull situations.the grievence is still ongoing and i have been advised by my union to also make a grievence towards the school in the way the investigation was dealt with and how they made me feel whilst going through personal circumstances in my life.there is alot more to this story but i would be here for days,are there grounds for putting a grievence forward about the school and any grounds for compensation for trying to destroy my good character and putting me through a large amount of stress. if you have any advise i would be very gratefull. TRAY

probation

20/01/2010 22:24:54

If your union says a grievance is warranted then there are grounds for one. But grievances do not produce compensation and that is unlikely to be an outcome. If there is a matter of personal injury then it is vaguley possible - but still unlikely unless you can prove damage to a significant level of proof. You need to talk to your union about this, but I wouldn't be hopeful of you getting any compensation from any source. An appeal is intended to put right a wrong. It did. In law the system has worked. Sorry, but I don't see any scope here.

shikahra

20/01/2010 22:36:22