ha ha .... yeah for your knowledge only though

I see Becky2585 is viewing your thread...... love to hear your thoughts Becky:-)

Hi Monster,

I have only skim read this and it has been a long time since I filled in an ET1, but some questions come to mind for me:

1) You mention at 55 no notice pay was paid. This is potentially a wrongful dismissal claim. Now from memory there is a separate section on the ET1 re notice pay I think. But you should consider explaining this further.

I don't think the POC is quite complete yet.

You mention an 'apprenticeship style' agreement. Was this a proper 'legal' apprenticeship. If so the POC needs elements adding to it I reckon as regards future losses etc

Were there any contractual provisions regarding, and what do they say as regards:

a) Notice of termination to be given

b) Any capability or dismissal procedures

c) Were you in possession of sufficient details as to comply with your ER's requirements to provide a written statement at the time of dismissal? If not then this should be added as a separate head of claim as it carries 2 or 4 weeks pay.

d) Did you ask for written statement of reasons for dismissal?

Amongst many other things......

Che

If you take PILON instead this would usually mean that the effective date of the termination of your employment would be your last working day, so you wouldn't qualify for SMP.http://www.hmrc.gov.uk/helpsheets/e15.pdf

This is an important point and I agree with mf.

Of course even if your EDT were brought forward via PILON, and this was done deliberately to prevent you getting SMP and this didn't happen to non-pregnant employees then this could be discrim.

In any event, if you have been working fairly regularly from memory there is a benefit called Maternity Allowance

Some people who do not qualify for SMP will qualify for Maternity Allowance. MA covers the self-employed and people with insufficient qualifying service to get SMP.

The amount of MA is currently £135.45 per week (with effect from 9 April 2012, previously £128.73 from 12 April 2011) or (if lower) 90% of the employee's normal weekly earnings, and is payable for up to 39 weeks. To qualify for MA, employees must:

Social Security Benefits Up-rating Order 2012,

• •have become pregnant and reached, or been confined before reaching, the commencement of the 11th week before the expected week of confinement
  
• •have been engaged in employment as an employed or self-employed earner for any fraction of the week, in at least 26 of the 66 weeks immediately preceding her expected week of confinement
  
• •have average weekly earnings which are not less than the maternity allowance threshold for the relevant tax year (currently £30)
  
• •not be entitled to statutory maternity pay for the same week in respect of the same pregnancy
  

Che

Hi Cherry,

Congratulations on the pregnancy, and sorry to hear about the redundancy.

This question came up at work and I know that we have looked at this before on a thread here http://www.consumeractiongroup.co.uk/forum/showthread.php?174110-Advice-request-Pregnancy-impending-redundancy-amp-maternity

As regards your right to SMP

What is your expected EWC - if you don't have that yet (Midwife Matb1 form) just a guess will do for now?

I think you will be entitled to SMP, provided you, "...worked for the employer continuously for at least 26 weeks, ending with the qualifying week, ie the 15th week before the expected week of childbirth ('EWC'). And of course you had to have be earning at least £107 per week.

Now I think we may also need to work out your effective date of termination, but if you are working your notice period it may well be the last day worked, provided sufficient notice was given.

Now my understanding is that if you do satisfy the statutory scheme as above you would continue to be entitled to SMP even if subsequently made redundant. However, this would not mean that holiday pay or right to KIT days etc will continue to accrue during the SMP pay period as your EDT could pre-date this, and thus the contract of employment would have ended.

Hope this makes sense.

Che

Am I right in saying that even if you are employed with only a "verbal contract" the employer must issue a "Statement of Employment Particulars" after a period of 2 months ?

Hi Deejay,

Have to agree with Squaddie's advice. The right after 2 months is to a written statement of particulars but of course this will not represent the entirety of the contractual agreement between employee and employer.

Job Offer, offer letter, employee handbook, verbal statements in interview and of course implied terms can all also form part of the 'contract'.

Have you worked for 2 months and not received anything in writing?

Che

Argh, the handbook says

which contradicts my POE :???:

Contra proferentem?

Advantage you me thinks as regards the purely, "on the contract as it is" argument..

My wife is currently in the process of bringing about an employment tribunal against her employer.

Hi Marley,

Sorry to hear about your wife. I agree 100% with Becky, but thought it might be useful to know in general what the ET claim currently being brought is about?

Che

Hi advice needed,

Sorry to hear about your dismissal. I must admit I thought it was very rare (mainly discrim issues) that a police officer could complain to an ET .

This is because a PC, "...is not an 'employee' within ERA 1996; he is not even a 'worker' within TULR©A 1992 or other recent legislation. But by special enactment a police officer is deemed employed by his chief constable or by his police authority for the purposes of the SDA 1975 (s 17) and the RRA 1976 (s 16).. "

I would contact your Union.

Best of luck

Che

Kinda informal at first I think, give them chance to discuss this amicably. My manager is visiting site next week (first time in a year!) so I'll see what he has to say then.

Sounds a reasonable first step. Best of luck, and do let us know how it goes.

Che

Hi Che,

I think I am going to try this... I want out anyway so if everything goes wrong it's not so bad - as long as I can find another job!

Good on ya Loz. What do you think you will do initially some kind of letter asking for the money e.g. a grievance or straight demand?

Che

Loz,

Once again sorry for the delay in replying work has been crazy.

I do not want to overcomplicate this (too late me thinks), but the way I see it there are 2 ways to look at your claim:

a) The way the law is worded gives us a formula for calculating holiday pay depending on different classes of worker and via this statutory formula you have been consistently underpaid holiday pay and / or

b) Your contract on the interpretation of its terms provides you with a contractual rate of holiday pay that exceeds the statutory amount, and you have consistently been underpaid this

Both of the above claims could be pleaded as a deduction of wages, and as such you could in theory link a series of deductions (one every 3 months) to make a chain going back 6 years (me thinks).

Whether you decide to go route a or b (you could plead both in a statement of claim), the starting point will be to informally ask for this, then formally ask for this e.g. a grievance, then if not settled internally claim in a tribunal or (if relevant) a county court.

If you claim against your employer and stay in the job, whilst in theory protected from reprisal, in reality your relationship with your employer is unlikely to be the same.

Thus, if your still following this thread, I have to ask, "Are you going to try and claim this?"

Che

Made the decision to step down so they can fill my position while i am off and when i return i will just be an admin assistant.

By step down do you mean you resigned? If so they may well be able to do this.

Che

Hi, worked there 6 yrs. occ health have sent reports to my employer on three occasions. Not sure about the Unison question?

Thanks for that. Do the occ health reports say there is any prospect of you being able to RTW in the next 6 months or recommend a phased RTW?

As regards Unison, you have paid subs, and therefore it appears you need them.

Surely a union member facing dismissal after 6 years employment is entitled to their TU employment legal help?

Che

Hi Loz,

Sorry for taking so long to get back to this.

It's been a long day and I would like to check more on this as I'm currently being driven mad by ss.221-229 of the ERA 1996

Would you say you worked, "....under the contract of employment ..... to work during normal working hours on days of the week, or at times of the day, which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of those days or times."?

i.e. did the times of the shifts vary? and did your weekly pay vary?

Che

I am gutted and am now facing being laid off on capability, haven't ever been advised to put a grievance in (too late now??) and can't claim unfair/constructive dismissal because of this.

Hi Milly,

Sorry to hear that. Has your employer got any kind of occ health report or doctors report on your illness?

How long have you worked there?

Do Unison have any internal procedure to appeal or request a review of your case?

Che

Prouty,

The obvious question, is have you raised this with the union sol? and what did they say?

I only had a quick look, but beyond the Durant case I could find little case law.

This is from a reliable source:

Under the provisions of the DPA 1998, the Information Commissioner can serve an enforcement notice on an employer requiring it to take remedial steps if it is found to have contravened the DPA 1998. This can include a requirement to:

— provide the personal data held about the data subject;

— rectify, block, erase or destroy personal data;

— refrain from processing data of a certain category;

— refrain from processing data in a particular manner.

In addition, if an employer fails to comply with any of the provisions of the DPA 1998, an employee can seek an order of disclosure from the courts and bring a claim for compensation if any damage is suffered as a consequence of the breach. Compensation for any distress caused may also be recoverable.

Why not call the ICO helpline. I haven't used them for ages but they were surprisingly good when i contacted them about 2 years ago.

http://www.ico.gov.uk/Global/contact.aspx

Has there even been a breach here? I know companies regularly tell staff that employees have moved on - workforce planning etc etc...

Che

Yes the s3 is a higher spec

 

The current generation Audi S3 (2006 to present) has a 260hp engine, vs 197hp in the A3's 2.0L turbo engine. The engine features an upgraded turbocharger, pistons, intercooler and more. The four-cyliner engine is good for a 0-60mph time of around 5.5sec (that's fast! The A3 does it in around 6.6 sec), and a top speed of 155mph.

 

Yeah thought so. I've just been speaking to him and likes fast cars and has had some nice ones but I know he loved the Audi - said it was the best fun he'd had on 4 wheels (he likes bikes also).

Says he might get another one, and that the you tube video has got over 20,000 hits thus far. Hopefully someone will name the thieves. AFAIK he's offering £1000 reward.

Che

call me sceptical but the images and editing is almost too good

That is my parent's next door neighbour and trust me the images are real the robbery was real. The guy has 4 kids, one only 3 years old and all bar the eldest were in the house at the time.

I hope they catch these thugs. Can a man not work hard and have a nice car without some n*b coming into his house and terrorising his family.

Makes me ashamed to be a Manc

And I can ask him what exact system he fitted if anyone really wants to know.

Che

NB I'm pretty sure its an S3 which I think is the sporty version of the A3 no?

Any info? Crime stoppers on 0800 555 111.

I told him what I wanted ( a quarter of my shedule of loss) and a reference

Hi Davuk,

I haven't read the whole tread, but if your schedule is realistic, AND your claim has merit, I would have thought 25% + an agreed reference is a good offer for them?

Was there any pre-claim conciliation with ACAS ; and if so, why not ring the conciliator, and ask him / her to contact R and formally offer this?

Che

Just a quick update.

 

Received a letter from my Union HQ stating 'the limitation period has not been complied with and so the claim is now out of time.' They have now nominated another panel of Solicitors for me, so have to wait for them to contact me.

So I wonder if the new solicitors plan to sue the old ones for proffesional negligence?

Attached letters from my previous Solicitors stating they served a summons but they were 20 days out of date.

They say they were waiting on the outcome of various 'test cases' before issuing a protective summons. But having so much to deal with my case got 'overlooked'.

Sounds like they were negligent to me, surely their indemnity insurer will have to foot the bill if your new sols are successful against them. They should have issued the case before limitation expired and applied for a stay (is that the right word Che's brain is fuzzy tonight). I know PI sol's would do that all the time when a client's prognosis was still 'guarded' or 'uncertain at or about limitation. '

And as an aside, from memory, does the law not say 3 years from date of index incident or date of knowledge? - obviously if you actually have an accident then you could hardly claim you didn't know!

Che

And the business link calculator for an 18 hour worker gives 100.8

100.8 divide 52 multiply 32 = 62 as Kirei suggested but I have heard people at work say the business link calculator can be wrong, and my calculation does come from a handbook at work (admittedly one based on a 5 day worker)

http://www.businesslink.gov.uk/bdotg/action/layer?r.l1=1073858787&topicId=1079427399&r.l2=1073858926&r.s=tl

hmmmmmmmm:???:

As always with holiday there are 2 questions (at least):

1) How many days holiday should I get; and

2) How much should I get each day.

The way I have calculated a 5 day a week term-time worker in the past was no. of weeks worked by EE (in your case this would be 32) / (52 - 5.6) x 5.6 = 3.87 working weeks leave.

Then for you a working week is 3 days so (3 x 3.87) = 11.6 days leave per year

Then you work an average of 6 hours per day thus 11.6 x 6 = 69.6 hours.

Which I know is slightly different than Kirrei's above.

As for which is right I'd like to hear some other views, holiday calculations are the bane of my life. Why can't people just work nice simple patterns!

Che

Well Jim I suppose all you can do as regards the holiday is attempt to protect your right to payment for accrued untaken leave upon termination.

Are you saying that you have not had any holiday pay at all since April 2011?

I think you need to consider a letter to your employer asking for accrued holiday pay, say you believe that you are owed it and ask them why they are refusing to pay.

And what is this 0.94 of a month's pay about?

The reason I ask is because it will be easier to look at the notice pay initially.

As regards the holiday pay, other CAGGERS will no doubt roll out Stringer (see the sticky thread at the top http://www.consumeractiongroup.co.uk/forum/showthread.php?251897-Sick-pay-amp-all-ancillary-beneifits-DO-accrue-during-sickness), but in fact to rely on Stringer alone is simplistic, as," The stringer case only sought to clarify that sick employees did in fact continue to accrue leave."

But since then we have had two contradictory EAT decisions. One (NHS Leeds v Larner) supports you being owed this and is here:

http://www.bondpearce.com/(S(impccbvvm4hkjm3hip35dcjw))/insight/Comment/NHS_Leeds_v_Larner_an_updaet_on_holiday_pay_for_sick_workers/

But I know (because I have seen a memo about this) that there is another EAT decision knocking about right now that reached a different view and contradicts with Larner but right now I cannot remember the other name

I think we're saying at work if the sick employee didn't request the leave within the last 3 months and / or regularly throughout the period of leave, keep the money to one side whilst we await more guidance on this .....

EDIT **

And lo and behold here is the other case http://www.xperthr.co.uk/article/111139/eat-rules-sick-employees-must-give-notice-of-intention-to-take-holiday-in-order-to-be-paid-for-it.aspx

And I have to say it was in fact commented upon prudently by becky on this thread on CAG

http://www.consumeractiongroup.co.uk/forum/showthread.php?335796-Larner-v-NHS-and-Fraser-v-South-West-London-St-Georges-Mental-Health-trust.

The basic position is that in order to take your annual leave pay in lieu, you have to have asserted your right to take annual leave during the holiday year. This didn't overrule Stringer, but it does mean that there are more stringent rules. The stringer case only sought to clarify that sick employees did in fact continue to accrue leave.

Did you contact your employer during your sickness absence to request to be paid for the leave, or has it only now been brought up? If you didn't request it, you may have lost it.

Incidentally, I have noted that opinion in the legal world is that the recent decision was pretty non sensical. It basically means that if an employee tells their employer "I have accrued annual leave this year" then they get paid for it, and if they're silent on the matter, it's lost. Seems a bit crazy.