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  1. A friend has asked for my help presenting an appeal for ESA Support Group to the Upper Tribunal, after loosing his appeal to the First-Tier Tribunal. His case appears strange because it appears that his representation by a Welfare Rights Officer (a local council employee) crucially damaged his case. Weeks before the hearing my friend submitted his own 5 page presentation of why he felt that descriptors 4,5,6 and 8 as well as Regulation 35(2) applied and his submission was included in the page numbered bundle sent out to all parties weeks before the hearing. Barely two weeks before the hearing, believing that it would help his case, he found a Welfare Rights Advisor who offered to represent him at the Tribunal. They met once and spoke on the phone a few times. On the day of the hearing that representative arrived minutes before the hearing began and asked my friend to sign a single page submission for descriptors 8 and 9 and some mention of Regulation 35(2). There was no time to read the submission properly and he was not given a copy. He did not want to argue descriptor 9 as he did not think that it applied to him, but it was too late to debate the matter and he signed the submission. The decision of the Tribunal and the Statement of Reasons did not say why, but consideration was limited to descriptors 8 and 9 only. The Tribunal said that they placed a strong reliance on the oral evidence, without saying why and they also said they did not believe that oral evidence, without saying why. They only asked about descriptors 8 and 9 and did not discuss Regulation 35(2) at all. They also found that it did not apply. The hearing was recorded and a copy issued with the Statement of Reasons. My friend applied for permission to appeal to the Upper Tribunal, but it was refused by a judge (a QC) who said that "descriptors 4,5 and 6 were not in issue after advice from an experienced Welfare Rights Representative" and he referenced SS Act 1998 12(8)(a). The implication is that the late submission contained some sort of cancellation of my friend's own earlier detailed submission, but the Tribunal office will not supply a copy of that late submission. Despite repeated requests the Tribunal office staff have repeatedly stated that they have already sent everything that is in the bundle. Clearly the late submission was not included in the bundle sent out weeks before the hearing, but they refuse to accept that. They have now issued a letter, quoting the Judge again, stating that the submission is the page number in the bundle after the last page itemised in the bundle list, and still refuse to send a copy. So I have two questions: 1) How can the Tribunal office be persuaded or forced to send a copy of the submission document? 2) Is it normal for a submission by a representative at a Tribunal to totally supersede any earlier submissions by the appellant on their own behalf and would it require specific wording to that effect? There are 12 days to go before the deadline for the appeal to the UT so my friend has prepared most of his arguments on several points of law, but any further thoughts or experience would be appreciated.
  2. Hi Experts - legal advice urgently needed. I am part way through a particularly complicated and protracted tribunal process (unfair dismissal, unpaid notice) with a crux point that is proving troublesome to clarify via legal forums or case law. I am the claimant. I've outlined the facts and Tribunal case details as follows in bullets below: The employer dismissed the claimant 02/01/2013. The reason given at time was redundancy. The dismissal was not confirmed in writing despite the claimant’s request. The employer did not observe a consultation period. It was a single day dismissal process. The dismissal was witnessed - another employee was dismissed on the same day (same meeting) also by reason of redundancy. The Claimant had a 3 month notice period and the agreed date of termination was 02/04/2013. The employment began 01/04/2011 meaning the employment term was 2 years and one day based on the date of dismissal plus the contractual notice period. The employer wrote to the claimant with subject header “Re: Redundancy” 14/01/2013 confirming agreement to discharge restrictive covenants in the Employment Terms concerning alternative employment with competitors. There was still goodwill at this stage. The first month of the notice was worked in full and Jan salary was paid/received as expected. Mid-February the employer placed the claimant on Garden leave (verbally) and closed the office premises. The Feb salary was not paid, March salary was not paid, April part salary was not paid. Holiday and redundancy pay were also not paid. Under the case details outlined above the deadline for ET1 was 02/07/2013. The respondent filed ET1 for unfair dismissal and other claims (salary, notice, holiday pay, etc) on 01/07/2013 – one day before the deadline. IMPORTANT FACT: Due to the employer’s unlawful deduction/withholding of the claimant’s salary, the claimant started alternative employment on 11/03/2013, three weeks prior to the end of the notice period. The employer has currently applied for the case to be struck out as out of time due to the submission deadline having apparently changed – due to the claimant having started alternative employment prior to the end of the notice period. Preliminary hearing has been scheduled. The Employer makes the case that the employees act of commencing full term employment elsewhere, represents acceptance of the employer’s fundamental breach (non-payment of salary) and as a result the effective date of termination became 11/03/2013. Therefore the claim submitted 01/07/2013 is out of time based on the revised deadline (11/06/13). From what I have read elsewhere it appears likely the effective date of termination will be revised to 11/03/2013 and the out of time rule will apply. Ordinarily the accepted breach argument would be open/shut case of constructive dismissal however the employer appears safe in this regard due to the 3 month rule. My question is this – does the employer’s failure to properly communicate the termination dates in writing adequately support the grounds that it was “not reasonably practicable” for the claimant to submit the ET1 within the revised deadline? Is there any case law to reference in clarifying the matter? Any advice gratefully received. Happy to clarify further if needed. Pre-hearing scheduled Late Oct. Thanks
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