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Everything posted by becky2585

  1. I instructed a barrister on one of my cases that knew the judges well, as my barrister was a part time judge. It made no difference whatsoever. A working relationship of sorts is insufficient to show legal bias, and the EAT greatly dislikes any such allegation, particularly from a litigant in person. LIPs tend to argue bias any time that they lose, and almost never does it hold any merit. IME, it would be pointless to try to make such an argument and as a LIP it's seriously unlikely that they would be able to formulate a legal bias case for the EAT - lawyers would even struggle to do so. Let it go. Unless there is anything else that you haven't mentioned, a bias appeal will fail.
  2. Yes - type all of your grievances on the same letter.
  3. Theoretically they should have a grievance procedure, but if they believe you're a worker or self employed then it won't apply. But I'd do it anyway, just to protect your legal position. Ordinarily you would raise it with your line manager in the first instance - but if it's a one man band, you can only raise it with him. At this point it's not really about getting it resolved, as he is so far ignorant of employment law that he probably won't even understand the legal implication of receiving a grievance. The point is that you'll have contemporaneous evidence of threatened detriments that you can present to the ET.
  4. That's horrendous behaviour. You need to raise a grievance, in writing, which complains about ALL of the above threats. You're protected against detriment or dismissal in the circumstances and you're potentially being subjected to both! It's incredibly important to write it all down now so that you have evidence for the ET. And do it before he sacks you! Have a read of this article. https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals-from-29-july-2013/making-an-employment-tribunal-claim-is-it-worth-it/detriment-claims/employment-tribunals-legal-tests-that-apply-to-detriment-claims/
  5. It sounds like a terribly sad situation. Your wife's employer isn't exactly going above and beyond, but they can legitimately refuse the leave so they aren't doing anything wrong either. Ordinarily I'd suggest a grievance, but it's highly unlikely to conclude before the suggested leave date anyway. Your wife could get signed off sick, if she has an ongoing legitimate illness. Her employer would need at least a degree or evidence to dispute that absence, and IMO it would be difficult for them to dismiss her given that a) she has a pre existing stress related illness and b) her current circumstances could be said to exacerbate that illness. The difficulty would be if in the future an unfavourable OH report was sought, she could be fairly dismissed. On balance I wouldn't take the leave. She has six(?) weeks to go and visit. Many employees don't have that luxury.
  6. Yes it's a rather complex situation. Have you got a written contract with them? (If not, you're not a zero hours worker anyway). It's possible that you work 52 weeks a year even though your contract is only 39 weeks for continuity purposes, but it depends whether the job you're doing is treated as such. You'd have to check with an employment lawyer for a definitive answer. As SW says though, the starting position is 5.6 weeks/28 days leave per year, which would be pro ratad to take into account the proportional weekly hours you work and the proportional 39/52 weeks. Holiday usually accrues at a rate of 12.07% of hours worked. The first step is to contact ACAS to commence early conciliation - and get your claim down in writing in the form of a grievance to offer a degree of legal protection against any detriment suffered in the future. Once you have completed the EC process, you'll either have a settlement or a certificate which allows you to bring an ET claim. It's a difficult calculation though - if you can get any legal help, id take it. Probably not worth instructing a solicitor privately, but you might have legal cover if you have home contents insurance.
  7. Both employees AND workers are entitled to holiday pay. I would suggest that you write a formal letter asserting your right to holiday pay for the entire history of your employment. If you have a record of hours worked, you could work it out yourself. If not, they'll have to disclose it as part of Employment Tribunal proceedings. My understanding is that if you're prevented from taking holiday by your employer then the law currently states you can claim any back paid holiday pay regardless of the statutory 15 months back stop... but I'm no longer practicing law so I could be talking bobbins! So in short, you could claim everything you're owed to this date plus anything owing in the future...
  8. It looks to me that the company have applied the statutory reasoning almost perfectly. Nobody would take the role on for one day per week and there is nobody to cover the role in a Friday. They can't fill the role internally. That implies that the statutory reason of an inability to recruit additional staff applies. If they did recruit for one day per week, it would result in additional costs. If they did, it would be likely to be on a consultancy fee at increased cost to the company, so their reasoning is correct. The are not purporting to shoehorn your salary into a statutory reason - it's entirely ancillary, and reasonable, for them to not want to pay you 100% salary for 80% of the work. Even if it was agreed, your holiday would be pro rata anyway. If the job no longer suits you, you may be better focussing your energies on finding alternative employment.
  9. Echoing the above. Defamation claims are very difficult and you could only be awarded £1 at the end of it!
  10. The section relates only to employment status for the purpose of making a protected disclosure (I think, without reviewing the whole section!) So in this case, it's to determine if you were engaged by either company as a worker for the purpose of a claim. It therefore sounds as though it relates to the degree of control they had over you and which of the two dictated when and how you worked. That's how I interpret the word substantial in this context, although I haven't come across this issue in practice. There's probably no question over the fact that one of them was your "employer", so the ET will need to work out (for the purpose of that section) which of the two employers have legal liability for the claim. It's a strange one, as agency workers by their very definition can't have a direct employment relationship with the company they work for, but for discrimination purposes or similar it's legally possible for the company to be liable for a claim.
  11. Agree with SW. The law on holiday pay hasn't changed - zero hours workers have always been entitled to paid holidays.
  12. Agree that it's wise to understand basic employment rights before engaging an employee. I disagree that 3 weeks pay is required. The statutory minimum is one week. An employee can only claim compensation for a failure to provide a written statement of particulars on the back of another successful substantive claim, i.e. Unfair dismissal. The employee could theoretically decide to pay substantial tribunal fees to bring that claim without another claim on the back of it, but the ET has no jurisdiction to award compensation in those circumstances and could only award a declaration of rights, which is rather useless after they've left the company!
  13. Most employment contracts that have a medical examination clause have it so the person is examined as being fit to take up the position. Suddenly demadning such things on someone who has been there for a while isnt a fair clause in a contract. Sorry, but that simply isn't true! It's settled law that the onus is on the employer to seek medical evidence on an employees condition in sickness absence dismissal cases, which is why employers should reserve the right to request evidence in the contract (with supporting information being contained in the handbook as a PP helpfully suggested). There really isn't anything unusual about this situation - it's completely standard practice. And in my experience a GP is often more helpful than OH, as OH would need to request GP records to provide a meaningful opinion. Going to the GP direct is often cheaper and more efficient.
  14. The clause is usually worded along the lines of "you agree to consent to a medical examination at our request. Any fees associated with such an examination shall be payable by the company". So no - it doesn't override statute, but it does give rise to a breach of contract and a more compelling case for dismissal if the employee refuses, as the clause doesn't say "you WILL consent" - it says "you agree to consent". These clauses are very common and the bulk of contracts that I see have them included somewhere. It works because the clause doesn't operate to FORCE the employee to consent or attempt to override statute - it operates to give the employer a stronger case for dismissal if they don't. And if such a contract is signed or worked under for a prolonged period then it's express consent, rather than implied consent. The statutory right to refuse kicks in when the consent form is sent to the employee and they refuse to allow access.
  15. If there's no contract then just terminate on a weeks notice - you don't even need to confirm it in writing given their length of service. Don't make it a disciplinary or termination hearing - just explain the reasons and pay them in lieu of a week. If there's any risk of a discrimination claim or other claim for asserting another statutory right though you would need to be a bit more cautious.
  16. It's true that failing to provide consent could be a breach of contract if she has such a clause in her contract or employment - I always include them. It's also true that if she refuses to consent, it's more likely she will be dismissed - firstly, because of the (potential) breach of contract and secondly, because the employer is entitled to use the evidence it has available to it to decide whether to dismiss. If there's no medical evidence, that won't help her case!
  17. It's fine to sign a settlement agreement. However, you will be giving up your right to being a personal injury claim that you are currently aware of. If you sign an agreement in its standard wording then you won't be able to continue with the PI claim. All you need to do is request that your current injury claim is excluded from the agreement and make sure an appropriate clause is written in before you sign anything.
  18. Contractual rights override the statutory 12 week notice period. If he has it in writing and hasn't signed a contract since then he's entitled to up to 52 weeks. However they could require him to work it, and if he was dismissed and then sued then he'd have to mitigate his loss which means it's unlikely he'd get the full years pay either!
  19. A dismissal because of a protected disclosure is different to a relevant health and safety dismissal. The employer may deny it, but all the judge has to decide is whether it is more likely than not that the employee was dismissed on automatically unfair grounds. In a similar manner, the employer is unlikely to be able to demonstrate it was a fair dismissal on capability grounds if there is no evidence of that either...
  20. The advice given above isn't quite correct. If she was dismissed because she made relevant health and safety disclosures and/or complained about a breach of her statutory rights under the working time regulations then the two year qualifying period for an unfair dismissal claim is waived, as any such dismissal would be automatically unfair. She doesn't have the right to written reasons for dismissal either - and I would say that could help. No company would ever admit they dismissed unfairly in the circumstances you describe and they're more likely to attempt to make something up. The next step is to contact ACAS and commence early conciliation.
  21. Agree with SW, except to say that the calculation doesn't apply to holiday entitlement, it only applies to holiday pay. So you would be entitled to a weeks paid leave - but you would receive a week of pay based on five days, rather than three. You'd still get 7 days in a row off for the cost of three days, even though you ordinarily work five. You wouldn't, for example, be able to take three days leave for a weeks holiday and then a further two days leave the next week - you're only entitled to the pay, not the time.
  22. Regarding 1 - there's no obligation on an employer, statutory or otherwise, to include such a clause. Therefore, reasonable notice will be implied - which, if using the statute, is zero. Regarding 2 - the intention of the parties was for you to work under a zero hours contract with no obligation for work to be provided. That's the very nature of a zero hours contract. Even assuming you were contracted to work full time with an absolute guarantee of a set number of hours per week, they're still legally entitled to terminate the contract without notice!
  23. If you were never provided with a contract and didn't agree to the deduction in writing then they have no right to deduct either the DBS or the FA course. It doesn't matter if you agreed it verbally - your wages are protected by statute and they have no evidence of any such agreement!
  24. They offered you a zero hours contract (ie a contract with no obligation for either party to subsequently provide or accept work). You accepted that offer. Zero hours contracts don't contain notice periods and the statutory notice to terminate is zero notice. So you're onto a complete loser here, as you've been told numerous times. You're entitled to no notice and no work - what makes you think you have a case? They could have kept you on but provided no work for the two week period! In the absence of any legal certainty you have no rights at all here.
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