Careers: Ask Edward

Unless you’ve done something seriously wrong, which could lead to your dismissal for gross misconduct, sit tight. It’s better to be dismissed than to walk out.

If you resign, you are normally not entitled to termination money. However, if your employer forces you to resign, you can argue that you were dismissed. Whether you succeed in showing this will depend on how you were treated; the worse the treatment, the more likely you will be able to show you have been effectively dismissed.

If you were effectively dismissed, you may have a claim against your employer, depending on the terms of your contract. At the very least, you should be paid for your period of notice.

As you’ve been with the company for less than 12 months, you’re not eligible to bring a claim for unfair dismissal to an employment tribunal. But if a tribunal concludes that your resignation was a “dismissal” and the reason for that dismissal was illegal, then you may have statutory protection. For example, if the firm wanted you out because you belonged to a union, or you exposed poor safety standards, or you were pregnant, then you can take action. In these cases, there’s no minimum length-of-service period before you can claim unfair dismissal.

If you think your employer has asked you to resign for reasons relating to your sex, race, sexual orientation, religious beliefs or disability then you may have a claim under discrimination legislation. Again, this is regardless of how long you’ve been working for them.

Finally, remember there are tight timescales for bringing claims to an employment tribunal. You have one day less than three months from the date of dismissal to bring a claim for breach of contract and unfair dismissal. Claims for discrimination must be brought within three months of the discriminatory event.

On Friday I received my annual pay rise, which did not satisfy me – I therefore refused to work that weekend. On returning to work, the site manager told me I had let down the firm by not working on Sunday, and because of this I would receive a written warning. I was not aware that it was compulsory to work overtime. And am I right in thinking that you have to get a verbal warning before you can be given a written one?

No. A written warning may be issued without a verbal warning, depending on the seriousness of the matter and the terms of the company’s disciplinary procedure. The warning should only remain on your record for a set period of time. During that time, your employer can rely on the warning if you are found guilty of another offence, so it puts you a step closer to dismissal.

As for whether this warning was justified – it depends on the terms of your employment contract or the company’s policies. If they state that you may be required to work weekends or that you are required to follow certain procedures in relation to weekend work, and you did not do so, then your employer may be entitled to discipline you. If, however, they are silent on this point and there is no other written policy or standard practice that governs the issue of weekend working then it is likely to be much more difficult for your employer to justify its decision to give you a written warning.

Normally you have to be given a chance to explain your position at a disciplinary hearing before the warning is given. Case law suggests that verbal warnings are appropriate for minor infringements of behaviour and a written warning would be suitable where misconduct is more serious or for repetition of a minor infringement. As such, it’s not clear whether the written warning was appropriate in your case.

Check your employer’s rules and procedures to see if it has fallen short of its usual standards and policies. You could consider lodging an appeal against the warning – but make sure that you follow the company’s rules.

I would like to know if it is legal for a company to recruit a manager over the head of an existing acting manager without advertising

the post or offering the acting manager the opportunity to apply for the job.

Yes, it is probably legal. As I understand your letter, the new manager is being brought in to supervise the existing person. Whether the acting manager should have been given an opportunity to apply for the position will depend on what they agreed with the company when taking on the extra responsibility. There may also be internal company rules or agreements regarding recruitment and the opportunities for those in acting positions, but generally an employer has the freedom to recruit as it may wish.