Hi Jim,

Sorry to hear that.

Can I first ask what they are paying you during your notice, full contractual pay or SSP, or indeed nada?

Che

So you just say I wish to appeal and that's it?

No, I don't think this is all you should do. You should set out the grounds of your appeal, because the House of Lords has, "... unequivocally affirmed that in determining whether the employer has acted fairly in relying upon the reason for his dismissal, the employment tribunal should take account of evidence which emerges in the course of an internal appeal." See Lord Bridge's comments in West Midlands Co-operative Society Ltd v Tipton [1986] 1 All ER 513, [1986]

Further more it appears that evidence raised at internal appeal that invalidates the original reason to dismiss must be taken into account by the employer, and in certain circumstances an appeal can in effect become a re-hearing and a re-assessment of the situation see for example Monie v Coral Racing (1979)

But isn't it best to tell them so they can think about it before the appeal date?

Thus yes I think you should outline in your letter at least the basics of your grounds of appeal. Just stating, "I want to appeal" alone will not suffice you should explain the basics of why you are appealing.

Che

I think any ET will not look kindly an an employee who deliberately attempted to conceal a disability and then raise a DD claim.

Indeed the EA states that an ER will not be guilty of discrim if they, "did not know, and could not reasonably have been expected to know" that the disabled person concerned had the disability (s.15(2)"

Now I'm not suggesting that is the case here as it seems clear if you have raised this in a minuted meeting then they should have been aware of it. But what is certain is that if there is an eventual ET claim, then your appeal letter will be in the evidence bundle and you can bet the respondent's representative will be happy to highlight the fact that there are issues you didn't mention in that that you are now mentioning.

As for employment law, if you have the ability to pass a law degree then you can understand employment law. Whilst some areas can be shockingly complicated (funnily I consider discrim to be one of these!) there is also so much common sense under pining all of it.

If it were me I would being doing some research on disability discrim both under the (old) DDA and the (new) EA and carefully drafting my appeal letter so that this is in it but without 'shouting' it from the rooftops in the letter and certainly not threatening the ET claim at this stage.

Well at least it is on record that it was raised.

Thus IF this is a PC, and IF you have been dismissed because of it, you MAY be able to get somewhere with a disability discrim claim but there are two big 'ifs' and a 'may' in that sentence.

Can you get a friend with some legal or HR experience to help you draft your appeal letter?

Thanks, I am going to word it in that way. Throughout the hearing I mentioned my depression , and that my alcoholism is linked to it., but they just gloss over it

Was the hearing minuted? Have you asked for a copy?

Would be good to know if the minutes include reference to the depression.

Hi D,

Think the length of the post may have put off more replies! As this is the local authority I have to ask if you are a paid up Union member - if so after 21 years subs you should be asking then to get of their bottoms and help you with this.

The only issue is, I am not exactly sure what 'this' is as barring the WW for absence it seems from the OP (correct me if I'm wrong, I do tend to skim read) that nothing else has really happened to you beyond the usual restructure etc...

You seem to have been successful in that you have not been made redundant so they must see something they like in your overall work performance?? Or am I missing something ....

I think you may well be able to make them a bit nervous about the dismissal if you attempt to link it to the potentially protected characteristic i.e. the depression (if this is indeed a PC). Thus it would be worth considering thinking how the facts can be presented in a way that brings this is in as being a factor in the behaviour that they view as misconduct and are ultimately dismissing you for.

Ultimately it is your appeal, and it is unlikely that they will do much digging into issues which you do not specifically raise.

Thank you for your reply. It's an admin role and they have stated it's gross misconduct as danger to myself and others, etc.

On what basis is being under the influence doing an admin role a danger to yourself or others? Just wondering if they have expanded on this point.

As stated on the earlier post whilst alcohol addiction is in of of itself not covered by the EA the depression might be and, if it were you wouldn't need 12 months service to bring a claim. That is if it were and there are other CAGGERS with a better knowledge in this area than me .....

Well all you have got to my knowledge is a potential argument based on the Equality Act 2010

The Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128) specifically provide that addiction to alcohol, nicotine or any other substance (except where the addiction originally resulted from the administration of medically prescribed drugs) is to be treated as not amounting to an impairment for the purposes of the Equality Act 2010. Alcohol addiction is not, therefore, covered by the Act.

However, an employee may have a physical or mental impairment that does amount to a disability within the meaning of the Act but which was caused by or was the result of alcohol addiction, for example a serious liver condition or a depressive illness. The employee would in this case be disabled, notwithstanding that the disability was caused to a large extent by the alcohol addiction. The cause of the disability is not relevant. Conversely, the alcohol addiction could be a symptom or side effect of some other medical condition from which the employee is suffering, which itself amounts to a disability.

Therefore, where an employee is or appears to be suffering from alcohol addiction, the employer should make further medical enquiries in order to ascertain whether there is an underlying medical condition, either caused by or the trigger of the alcohol addiction, which is a disability.

http://www.xperthr.co.uk/faqs/topics/6,57/disability-discrimination.aspx?articleid=60637

But whilst dependency on drink is now more likely to be treated by an enlightened employer as a medical condition, thus, a capability issue, it could still also be viewed as misconduct, and indeed depending on your type of job (safety of the public, yourself or co-workers), gross misconduct.

Generally speaking what do you do, and how long have you worked there?

Che

Hi Loz,

Hmmmm now this is interesting. We have looked at this on a past post in some detail (http://www.consumeractiongroup.co.uk/forum/showthread.php?176506-Working-more-than-my-contract-consistantly.)

There are 2 elements to your question:

a) How much leave are you entitled to?

b) How holiday pay should be calculated when such leave is taken?

In respect of point (b), I just wanted to add one caveat to the above.

Let's look at the law. A worker is entitled to be paid for any period of leave at the rate of a week's pay for each week of leave. Sounds simple right?

A week's pay is calculated, as SW rightly says by WTR (reg 16) referencing you to ERA 1996 ss 221-224

This means that, "...where an employee has normal working hours, overtime only qualifies as part of a week's pay where the overtime is fixed under the contract of employment. The effect is that only contractual hours are included and, for example non-contractual overtime hours are not. This can lead to situations where, although the employee regularly works substantial periods of overtime, pay while on holiday is based upon the lower number of contractual hours.".

See for example Bamsey v Albion Engineering [2004] ICR 1083 - employee worked on average 58 hrs per week only received hol pay bassed on contracted 39 hours per week.

The starting point is - Are you, in law, an employee with normal working hours who regularly works non-contractual overtime or genuinely an employee with no normal working hours? If the later then you should get a 12 week average

NB - Of course I do note that your case is not exactly mirrored by the above as Bamsay related to overtime and your seems to relate to, 'an on call allowance'

AND it is noted that since I wrote the original post above some complicated things have happened. I'll try not to bore you but since then this area has received judicial attention in the BA case where the UK Supreme Court asked for guidance from the CJEU

The questions put relate to the extent to which the Directives define requirements as to the nature and/or level of payments required to be made in respect of annual leave, and in particular whether the rate of payment must correspond precisely to, or be broadly comparable to the worker's 'normal' pay, and if so how such a concept should be assessed.

The answer proposed by Advocate General Trstenjak was that holiday pay, both under art 7 WTD and under the Civil Aviation Directive, are to be calculated in accordance with national legislation and/or practice, but that:

'' … holiday pay must, in principle, be determined in such a way as to correspond to the worker's normal remuneration''

and that in particular, where the level of remuneration varies (as in the instant case, because pilots' pay is supplemented by allowances for flying time and time away from the home base), a worker is entitled to holiday pay 'corresponding to his average earnings' based on 'a sufficiently representative reference period'.

However in the UK we don't use the Working Time Directive directly (as such) to say what the law is on holiday pay but we use the Working Time Regulations and a consequential statutory formula in the ERA 1996.

"One consequence of the requirement to use the ERA 1996 formulae for calculating a week's pay is that significant elements of actual remuneration may be excluded from consideration in the calculation, particularly so if the worker is paid commission in addition to a salary"

So now it appears to me that we are in some flux in this area, as the court could or could not follow the advocate's opinion, and this relates to employees (pilots) who are covered by a slightly different law, but nonetheless,"... has implications outside the aviation sector both for those whose working time is governed by other sector-specific regulations and for the calculation of payment annual leave under the Working Time Regulations where currently payments such as non-contractual but regularly paid overtime payments are excluded." http://www.oldsquare.co.uk/news/1/?c=30224

Of course all the above only applies to statutory holiday pay (i.e. the 28 days for most people), and not any right to contractual holiday pay.

How are these shift allowances described in your contract? and how much holiday entitlement do you get each year?

Che

Hi Kc

Sorry to hear about the dismissal.

The post is written in general terms, so I'll try and give you a 'general' answer.

For an employer to fairly dismiss an employee, (who is eligible to bring a unfair dismissal claim), generally speaking the dismissal must be for a fair reason (the substantive part) and the employer must also have followed a fair process, the procedural part.

"Even where an employer has established that the reason for dismissal is potentially fair, the dismissal may be found to have been unfair where the employer has failed to follow a fair procedure. Employers must follow the Acas Code of Practice on Disciplinary and Grievance procedures"

http://www.acas.org.uk/index.aspx?articleid=2174

If the employer's 'policies' you refer to had contractual force and were not followed there could also be an 'underlying' breach of contract that could lead to an employee having certain claims related to said breach.

Sometimes procedural unfair dismissal claims can leave an employee with a reduced award though - google Polkey Deduction

A bit more information may help. Is a claim being considered by the dismissed employee?

Che

Even if you

Hi Lemonpinklady,

Sorry to hear about that. ACAS guidelines mention reasonable notice required for certain meetings, and this is generally accepted to be 48 hours.

But before we even know if this applies you could help us by telling us:

1) Did the meeting result in termination, and assuming so;

2) Why was the meeting called i.e. what was the reason for the dismissal?

3) How long he worked there?

Che

Hi posterboy,

Normally as you know something like this would happen early on in the employment relationship when the employee has less than one years service. Indeed if done properly any type of job offer like this will be 'conditional upon' these checks.

In your case I see 2 questions:

1) Can my employer legitimately ask me to do this - (almost certainly the answer to this is yes if you work in security) and;

2) If I fail the check can they fairly dismiss me?

Well in your case you have enough continuous service to bring an unfair dismissal claim if you are dismissed unfairly. The fact that you have been doing the job so long now must have a bearing on the process but ultimately if the check reveals something sufficiently serious, then depending on the nature of the job, a fair dismissal could result.

But I wouldn't worry about this for now. If you passed the check previously and have been working there since, why would you fail now?

Che

Where do you stand with redundancy consultation and compassionate leave? To add to the stress I've now had a bereavement in the family. I obviously need to take some time off but where does this leave me with the consultation phase?

Hi dml,

Very sorry to hear about this on top of the problems at work. You may know that the death of certain people can trigger a legal right to some unpaid time off work for what they normally term, 'Dependant Leave' see http://www.unitetheunion.org/resources/equalities_2011/equalities_-_legacy_content/equalities_resources/employment_rights_for_working/your_right_to_dependant_s_leav.aspx

There are various reasons an employee could be legitimately absent from work, such as the above or because of sickness etc... . But the point is that I'm not sure that even absence from work is going to stop your consultation continuing. An employer could do all they could to keep an absent employee 'in the loop' during the consultation process (e.g. send minutes of meetings ask for written representations, offer to elect a rep etc) and the eventual dismissal might be fair.

In fact if your employer's rationale for the redundancy was to to save costs then assuming sufficient time for genuine consultation, a semi-legitimate aim of theirs may be to ensure that consultation is concluded as soon as possible to minimise the costs they have to pay to employees in terms of statutory payments.

In your case your employer almost certainly has realised that to dismiss you before your 2 years service will save them money, and I'm sure they will try to do this if they really do make you redundant.

Perhaps a grievance might throw a spanner in the works, but this culd be equally fruitless. You should ask your solicitor for more advice.

Best of luck

Che

Hi Dml,

Sorry to hear about the proposed red.

There's lots of issue in your post. You seem to be on the potential most valuable one - if you can link the dismissal to the statutory right (the flexi working request). No doubt your solicitor will give you more details about this.

Remember to get stat redundancy pay (SRP), you need to have been working for 2 years at the effective date........ and you are not at 2 years continuous employment - yet....

There is no 'real' relationship between what you are entitled to if made red, and notice pay whether PILON or not.

Just to be clear an employee with 2 years continuous service at the date they are dismissed for reason of red is entitled (at least) these to 3 things:

1) SRP - max £430 per week - calculated on a scale that relates to age and length of service

2) Notice pay - u may have to work to get this, but should still get this if you not allowed to work it. It should be at least 2 weeks in this example.

3) Accrued but untaken hol pay.

As for trying to delay the consultation, u need to tell us a bit about the employer's rationale for the redundancy.

Hope this is some help.

Che

the OP should stand up for their right.

Which is what I said

But yes perhaps the repudiatory breach (which in any event was merely an example and has not happened on the facts here) would only mean an employee lost accrued contractual holiday pay i.e. any holidays above the statutory minimum ....... I mean redudiatory breaches can disentitle an employee to notice pay which is also a statutory right no? che will go away and think about this

But in any event we both agree that if this is statutory holiday entitlement then it cannot be lost merely for failing to give notice!

NB this would seem to answer this:

All employees are entitled to be paid in lieu of accrued holiday on termination of employment, irrespective of how that employment ends. As the right to paid holiday is a statutory one, an employee is still entitled to it even if their employment ends by reason of gross misconduct, without notice or payment in lieu

http://www.personneltoday.com/articles/2007/03/14/40532/minimum-holiday-entitlement-q.html

Whether you give notice or end with no notice you are completely entitled to any accrued holiday pay. .So you need to know how many days you are owed, how many you have taken, and the difference is owed to you. Simples.

Have to agree with Ibruk above (although 28 days is more likely).

BUT that aside, (and ignoring arguments about carry forward of holiday from one year to the next), you can only ever lose accrued statutory holiday upon termination if you commit a repudiatory breach of contract i.e. gross misconduct. Failing to give notice is a breach but not a sufficiently serious breach as to be repudiatory.

The label your employer puts on your actions is not definitive.

For example they could say being late 5 mins is GM and as such you are dismissed w/o any accrued holiday or notice.

That would be a ludicrous argument and not one you could defend in ET. You should chase Manpower for this money. It appears you are owed it!

It is my understanding that the unions would only have agreed to a very short consultation on the basis that no redundancies (or dismissals) would arise. Now that the employer admits that they may arise - as a result of the changes - but at a later date, it feels like the consultation on the changes itself should be the statutory (90 day?) one.

Is there a Union and are you in it? I ask because they should assist with this if you are, and also because there could be some collective agreement in place that relates to how and when and what should be consulted on.

However, assuming no collective agreement to to the contrary exists, then as a general principle, "...the obligation on the employer undertaking, under the Collective Redundancies Directive, to engage in consultation only arises once that decision has been taken, and not at the earlier point when that decision is merely proposed but has not yet been made, according to the opinion of Advocate General Mengozzi in USA v Nolan"

At the moment in the case of Nolan, we await full judgement of the ECJ, but it appears to me that, should they follow Advocates Generals preliminary opinion in the matter they well may hold that in domestic UK law the employer's obligation, "...to engage in consultation only arises once that decision has been taken, and not at the earlier point when that decision is merely proposed but has not yet been made..."

However, in a case where redundancies 'may' happen in 2 years time, I fail to see how some ongoing obligation to consult could not arise as in the next 2 years something may change which changes the rationale for the redundancies that exists now.

I personally think it would be hard, if not impossible, to defend a redundancy as fair where consultation had taken place 2 years prior to the dismissal.

But, it is difficult to be more definitive on the limited information available here, and on the basis that the the final decision in Nolan is not yet in yet.

Hope this is some help.

Che

Hola ysmotek,

I've been meanig to get back to this but not had time ....

In answer to your question, no it is my other half who is the 'compatriota'' - I've decided I'll never pronounce the rrrrr in ropa in quite the same way that she says it!

To get back to your problem, how are you funding the solicitor?

I ask this because your costs will likely not be recoverable in an ET and it is perfectly possible to draft the ET1 yourself to claim your sums due.

I'm a bit rusty these days but I think that despite the fact that you will going (for amongst other things) for a CD claim then you should still consider writing to your employer asking for written reasons for dismissal:

Dear Sirs,

I have recently been dismissed from your company.

I would like to request that you provide me with written reasons for my dismissal. I would remind you that should those provided be inadequate or untrue, you will have failed to comply with your obligations in this respect as outlined in s.92 of ERA 1996

If they fail to reply then potentially this adds another 2 weeks pay to your claim.

I suppose potentially you have claims for, (1)Unfair (constructive dismissal),(2) Unpaid Holiday Pay, (3) Notice Pay / Wrongful Dismissal [potentially drafted as an unlawful deductions claim] ,(4) if no written contract potential claim for failure to provide and then also potentially (5) the failure to provide written reasons assuming you write the letter as listed above

I have got some sample precedents for eavh of the above heads of claim, and these precedents can be amended by you quite easily and inserted in the correct place on the ET1, but if you've got a solicitor free e.g. via some BTE insurance then they will take care of this. Just to ask again, how are you paying the sol?

Meanwhile, as mentioned by SW above, you need to be getting your evidence together to support claim 1 above as this will be the hardest to prove. One easy way to look at CD is to think of it as the reverse of a gross misconduct dismissal i.e. GM by the employer made it impossible to continue to work under the contract of employment. Thus, to that extent it will only be your employer's actions PRIOR to your husband walking our that will be relevant. Post termination actions will go to general background only and have no bearing on the legal substance of the CD claim, which as SW rightly says, could well be hard to win.

Kind regards

Che

Hi Harper,

If the structural changes do not lead to any type of dismissal or unilateral contractual variations which lead to a 'take it or leave it' type dismissal, then most probably no.

But, you could find the 'structural changes' lead to people being 'offered' new T & C's of employment and this can lead to a stand-off between the employer and the employee which can be viewed as a 'dismissal' if the employee refuses to sign. If this happened, if there had been no consultation at all prior to this, then this may well be unfair.

Of course good practice would be to consult from day one.

How many employees are affected by the change, and how many employees does your employer employ?

Che

 

1) how do you apply for it

2 ) is there any forms

3) What reasons can they refuse it for - biggest question

Hi Labrat,

Sorry to hear about the problems. Just to clarify, dependent leave is unpaid leave to deal with unplanned absence, for example, unexpected disruptions in childcare e.g. the school is suddenly closed etc etc http://www.unitetheunion.org/resources/equalities_2011/equalities_-_legacy_content/equalities_resources/employment_rights_for_working/your_right_to_dependant_s_leav.aspx

Thus in answer to your questions:

1) You don't apply you just have to tell your employer as soon as you become aware of the unexpected disruption

2) Not any statutory forms no, but your workplace may have a system for notification of absence

3) They cannot - although they could of course challenge your right to take it if they think your absence is not within the legal 'definition' of dependent leave

other question is - there work is on the bradford factor they are counting dependancy leave the same as time off ill is this correct

Well the bradford factor is designed to deal with frequent short term absences from work (for example 5 one day absences have a higher score than one 5 day absence) and it is normally used when employees have repeated short-term absences because they are sick; but I suppose it could in theory be used this way if they consider the absences are not dependent leave.

The whole point with dependent leave is that it is designed to cover unexpected events.

Thus, it should not be something that you repeatedly claim, for example, if the baby sitter cannot work Friday afternoons it may be dependent leave if she tells you on Thursday; but it is probably not dependent leave next Friday, as by then you had had more than 1 week's notice.

Your friend needs to sit down with her employer and be frank about the problems she is having, and they should try and work out a shift pattern or hours of work that can fit around her other commitments / problems. The employee could also consider a flexible working request if this is relevant

I hope this is some help.

Che

And this post crossed with SW's above ......

Hi ysmotek,

Sorry to hear about the way your husband was treated.

Certainly how much an employee is paid and when he is paid are express terms of a contract of employment. If an employer breaches an express term this could well equate to a fundamental breach. IF, you can prove you resigned in the face of this fundamental breach then in theory at least you have the basis of a constructive dismissal claim.

In your case, I suppose the argument would be that as money became tighter for you their repeated failure to pay on time, had an increasingly severe impact on you and thus whilst you could tolerate the breaches earlier on, lately it became impossible to continue like this.

Did you ever submit a formal grievance about this whilst in employment? Hopefully for you, the e-mails you have will serve as the grievance.

How much holiday pay are you owed as you should in the very least be able to claim this relatively easily.

Che

Hi

I have only actually claimed once from the RPO. This was 2009 and this client was claiming (from memory) unpaid SRP, unpaid wages (notice pay), unpaid holiday and I think also the basic award for unfair dismissal.

The client did receive the sums in 2 separate cheques about 2 or 3 weeks apart. It was not a difficult process and we filled in one RP1, and the RPO sent a further questionnaire as regards the unpaid holiday and wages I think.

You can get an overview of what you can claim here http://www.purnells.co.uk/limited-company/employees.html and also see the RPO phone numbers there. Now I cannot remember if you have to put the ET1 in to get the basic award for unfair dismissal, I remember that we nearly did because the 3 months was coming up and the RPO had not processed the claim but this part I can't remember right now.

Just contact the RPO and double check about the unfair dismissal element - that is if that applies to you as this is not clear from the OP.

Che

Sorry just to add: that as a result of the above if your 'shift bonus' brings you within what is envisaged by s.221(3) of the ERA 1996 then it could be that the proper way to calculate a week's pay will be an average of the pay received by the you over the 12 weeks prior to the calculation date