Are we doing this right

[dori2o]

My wife was made redundant on the 31st Jan, we are claiming unfair dismissal, I would like some advice on whether we are doing the right thing?

 

My wife started working for a discount booze shop in June 2007 working 20-25 hrs per week.

 

In November 2008, out of the blue, the owner of the shop announced that he had sold the store to someone else, the new guy came in and kept the old staff, no change in contract, no change in hours and no mention of possible redundancies.

 

Just after Christmas (End December) my wife was ill and had a week off work, when she returned she found that the employer had taken on a new staff menmber and his 'friend' visiting from India, had also been doing the odd shifts. At this time my wifes hours were reduced to 16.

 

On 30th Jan 2009 my went into work as normal, just before the end of her shift, the employer handed her a letter that was dated the 29th Jan, and stated that from 31 Jan she was redundant.

 

Throughout the time the new guy has owned the shop there has been no mention of redundancy, no consultation, no meetings.

 

My wife left, but had to go back for her salary,it took a few days of arguing to convince the owner my wife was entitled to a weeks notice pay, which she has received, however on her payslip it is noted as redundancy pay.

 

We have spoken to ACAS and in their opinion there is a good case for unfair dismissal.

 

We have sent the employer 2 letters so far,

1) A request for a statement of reasons

2) an appeal against the redundancy as he has not followed employment law rules.

 

These letters were received by him on the 3rd February by recorded delivery but as yet there is no answer, we have given him 28 days to respond.

 

Can anyone suggest anything else we should be doing?

[ErikaPNP]

At the moment, no. He has to be given this time to respond. If you write to him again or contact him in any manner within the 28 day period it could be construed as harassment. Wait the 28 days to see if you get a reply. If you do get a reply, post it here if you want advice on it and also get back to ACAS with the reply.

 

If there is no reply within the 28 days, you can then escalate it further.

[dori2o]

Thats what i thought, the employer is an arrogant little so and so so I don't expect any response.

 

In the meantime we have decided to complete the ET1 in preparation for submitting it when the 28 days are up.

 

Can someone read through the following that we plan to use as our reasons for thinking the employer has dismissed unfairly.

 

I had worked in this employment continually since June 2007 until 31 January 2009. I understand that the business was sold to new owners in November 2008, however my employment continued as normal. At no pint since the new owner took control of the business and my employment were any of the staff made aware of the possibility of any redundancies.

I am aware that the employer should have followed a procedure in deciding who to make redundant, as set by the Employment Rights act 1996, I believe my former employer has failed to follow any of this procedure.

These procedures include:

 

• how people are chosen for redundancy
  
• consulting with you before you are made redundant
  
• following a three-step dismissal process
  
• giving you proper notice of redundancy
  
• offering you alternative work, where possible
  
• giving you time off to look for another job
  

It is my understanding that if an employer is thinking about making you redundant, they must follow the three-step dismissal procedure laid down by law before they can dismiss you. This means they must:

 

• send you a written statement, telling you why they are considering making you redundant
  
• hold a meeting with you to discuss the matter
  
• hold an appeal meeting with you, if you want to appeal against the decision to make you redundant.
  

My employer did not follow any of the proper dismissal procedures, for this reason I believe my dismissal to be unfair.

The only knowledge I had from my employer regarding redundancy, was when he gave me a letter 10 minutes before the end of my shift on the 30th January 2009. The letter was dated 29th January 2009. I tried to ask the employer to explain, but he insisted he was too busy and left.

The letter stated :

“I am sorry to inform you that as from 31st January 2009 you have been made redundant. Sorry for any inconvenience caused.

If you require any other information then please do not hesitate to contact me. I wish you every success in your future.”

I have since written to the employer on 3rd February 2009, the letter was sent recorded delivery and signed for at 12:15pm on 5 February 2009, in this letter I requested a statement of reasons, as per my rights under the s.92 of the Employment Rights Act 1996, and I also appealed against his decision to make me redundant, on the grounds of non compliance with statutory procedures relating to redundancy. To date I have not received a reply to these letter, neither have I received any holiday pay in lieu of accrued holiday entitlement, nor have I received my P45.

[dori2o]

Today my dad went into work only to be told, you have no work this week, he is a plumbing and heating engineer and relations with his employer have been frayed for a number of years. My dad was told to go home today. The job he was doing last week that still needs finishing has been given to another employee.

 

My first question is, his contract is for 40 hours p/w, but it does say in the contract if there is no work and he has to go home he will not be paid.

 

Is this legal?

 

My dad is thinking of just calling it a day. I believe he may have cause for Constructive dismissal. Here's a view of the things that have happened over the past few years, mostly on a regular basis.

 

Owner of business constantly making snide remarks about my dad.

 

Constantly turns up for work only to be told there is none, this happens at least once every 2 weeks, my dad never receives payment for the days he does not work. This includes days like today, he could have been on a job for 2 days, and the employer takes him off for no reason and puts someone else on.

 

Is constantly taken off jobs and told to go to local company to unblock toilets, then return to previous job, he could be anything upto 60 miles away from the blocked toilets, whilst other plumbers are closer.

 

The employer paid for all employees to go on a required course, the fee was £600,without this course the heating engineers, by law, cannot touch gas equipment, all employees but my dad were sent on the course, my dad has been a heating engineer for 40 years. My dad has since, without the employers knowledge done the course at his own expense.

 

The majority of problems started around 2004. For about 7/8 years my dad had been working for the employer on a contractor/self employed basis. In late 2003 HMRC ruled that my dad was an employee and charged the employer 2 years worth of employers National Insurance contributions, a total of £5000.

From the 1st Januart 2004 my dad was made an employee of the company because of this.

 

The employer tried to encourage my dad to pay half the bill, and when he rightly refused, the employer became funny with him.

 

My dad is hoping that the employer may make him redundant, but when it comes to working out his redundancy how many years willhe be entitled to.The employer has stated that he has been employed there for 2 years, but if HMRC have ruled that he was an employee for at least 2 years and forced the employer to pay the NI contributions for those yeras, would he be able to claim an extra 2 years redundancy?

 

As stated my dad really does not want to go back. Would he be able to write to the employer and request he is made redundant? Would he still be able to go for constructive dismissal in this case? Would he be able to claim the 2 years on top of his service as discussed above?

 

Below is a copy of his employment contract.

 

 

[godpikachu]

yeah, it does sound like your dad has the makings of a constructive dismissal claim there, plus maybe something for discrimination as well.

 

as for his T&Cs of employment, they look well dodgy, for example he is "contracted for 40 hours per week, dependant on work at hand", this is rather ambiguos as to its meaning, as it means both that he is guaranteed 40 hours work a week, but yet isnt.

 

as for some of the stuff you say hes had to put up with, i can see quite a few boo-boos in there, such as harassment (not allowing him to complete work, then putting someone else on his job after he has been sent away), bullying (making comments about him) and quite possibly ageism.

 

Before quitting though, i would suggest that he write a letter of greivance to his employers, and insist they make a written reply within 7 days of recieving it, mentioning in the letter he is giving serious thought to taking ET action against them for discrimination.

[dori2o]

That is more or less my thinking.

 

What I am concerned about is the fact that the employer has told him he has no work this week. With the current financial situation my mum and dad are already into their savings and now my dad will not be at work for a week. But does the employer have a duty to pay him?

[godpikachu]

well, like i said, his contract leaves his actual employment status to the imagination.

 

on the one hand it states that he is guaranteed 40 hours work a week, but then on the other it states that he isnt, id wager they have deliberatley done this so that if anyone ever asks "do i get paid if im turned away from work?", they will answer no.

 

as far as i know, if you are contacted for X number of hours, and present yourself for work, but they turn you away, they are still obliged to pay you.

The only real way i can see they can refuse to is if they employ you on an "as and when" basis, which they clearly havent done as the contract itself specifies 40 hours per week.

 

What id suggest your dad do is give ACAS a ring tomorrow and have a word with them about it, as im not 100% sure on this.

 

 

*edit*

Also, from re reading your original post, and looking through the contract, it seems that many of the terms that are in there read to me like they still classify him as being self employed/sub contractor....which to me is weird, as you are either one or the other (as in, either employed by them or self employed), you cant be both simultainiously.

[dori2o]

thanks

[dori2o]

Are the details of individual employment tribunals available in the public domain.

[pippadeee]

No, not as far as I'm aware. You can search court lists but you'd need to know which court and in what district and when a case was scheduled to be heard to find a specific tribunal you were interested in - a laborious task, but generally speaking I don't think so but if I'm wrong I'll be delighted.

 

I think soon it may be the case that details will be public in respect to employers and their tribunal activities though I'm not 100% sure on that. I recall reading something a while back about that and complaints that employers would then be targeted by "ambulance chasing" legal services and HR outfits

 

Tribunal appeals are in the public domain however -

 

Employment Appeal Tribunal

[dori2o]

I would just like to update on what has happened since I last posted.

 

After being told he had no job on Monday 16th Feb, I contacted ACAS on my dad behalf and advised them what had happened. My dad went to the doctors as he has been working recently in pain with his back and his knees (he has rhumatoid Arthritis and Spondilitis) the doctor signed him off for 2 weeks. He sent the sick note to the employer on the 17th.

 

On the 18th Feb my dad received a letter from his employer dated the 16th Feb inviting him to a disiplinary meeting on 19th Feb on the charge of leaving his duties as an employee withiut prior notification. He had no time to prepare for this meeting so we sent him this letter first class and also faxed a copy directly to the office on the 17th.

 

In response to your letter inviting me to a disciplinary meeting, which was received by post this morning, I have contacted the Advisory Conciliation and Arbitration Service (ACAS) in order to take advice on this matter.

 

Upon their advice, I respectfully request that the meeting scheduled for Thursday 19 February 2009 is delayed for a period of 7 days in order that I have time to prepare for the meeting. I also request that you send me the following information to help me prepare for this meeting.

 

· Copies of any written evidence in relation to the disciplinary action.

· Details of the offence committed, as I have no recollection of ‘Abandoning duties without notification’. This should include the time and place of the offence committed.

Please contact me as soon as is possible on ************ in order that suitable time for both of us can be arranged without delay. If I am not available please leave the details of the revised meeting arrangements with my wife and send confirmation in writing.

I give notice that I intend to request the presence of a work colleague to be present during this meeting as is my statutory right. I also confirm that I will be requesting copies of the minutes of the meeting.

 

We never received a response to the letter until 23 Feb inviting him to a meeting on the 26th feb,unfortunately my dad was too ill to attend that meeting so called the day before the meeting to advise that he would be unable to attend.

 

During the weeks that passed the employer ran a salary for my dad as normal, but there was no pay, just tax refunds- he did not make any SSP payments to my dad.

 

The meeting was finally arranged for the 5th March, again the employer sent a letter inviting him to the meeting, and asking himto contact the office if he needed help with transport to attend the meeting. My dad had made clear that he wanted the works foreman to be in attendance, but when he got to the office he was told he had been sent on a job.

 

When he arrived for the meeting, the employer was in a meeting with somebody who was not an employee of the company, he may have been a customer, but it was a business meeting.

 

The employer concluded the meeting with this person by telling him he had to cut the meeting short as there was an employee waiting for him regarding a disciplinary matter, and went on to diclose to theis person the details of the meeting he was about to have with my dad.

 

When my dad went into this meeting he confronted the employer about his conversation, and he completely denied it. My dad then managed to call the guy back in and requested a business card from him, at which point the employer blew his top and said my dad was out of order and that he had no rights listening in to a private discussion. Not that he had a choice as you could hear it outside the office.

 

In the meeting the employer said that as far as he was concerned my dad had walked out of his job when he went home that day and that was that. He says he is entitled to no notice period, holiday pay, sick pay or anything else as my dad walked out. My dad told the employer he disagreed with this but the employer did not want to hear anything about it, the meeting was concluded.

 

My mum phoned the employer later that day to ask about his sick note as they needed it back, the employer then said he had not decided if he was going to pay my dad any sick money and that my mum should call back Monday (today)

 

When my mum called back he said he still had not decided what he was going to do, but that in his opinion my dad had resigned.

 

It waspointed out to him that my dad has never written and oficcialy resigned. The employer also said my dad had resigned before christmas and that he was suprised to see him on the 5th January when he retuened, again my dad has never submitted a written resignation, as is required by the terms of his contract.

 

My mum then asked when he would be getting his notice pay, holiday pays etc, to which the employer replied, never.

 

My mum asked why, when he had sent everyone else on the ACS courses, he had not sent my dad, he said he was not spending another penny on my dad after what had happened with the national insurance penalty as my dad had refused to pay half the bill.

 

My mum has to call back tomorrow to see if he has made a decision on the SSP and I have said to try and get the call recorded to see if he makes that statement again.

 

My dad has contacted ACAS and we have to write him a letter asking for him to advise what his decision is, they say that my dad has not resigned and that the employer must decide on either sacking my dad, putting him on notice or making him redundant. My dad has never has a verbal, written or final warning in his time at the company.

 

From what has been said above can anyone offer any advice?

 

PS my dad has also spoken to the foreman recently who has confirmed that he has spoken to some of the other employees present on that Monday morning, and they have told him that the employer did tell my dad he had no job for him, can he request a statement from the foreman to support this fact? and is the foreman in a position to refuse this request?

[godpikachu]

During the weeks that passed the employer ran a salary for my dad as normal, but there was no pay, just tax refunds- he did not make any SSP payments to my dad.

 

SSP is a statuatory RIGHT, his employer has an obligation to pay him it, especially so if his doctor has issued him with a sicknote.

More ammo for the tribunal there.

 

When he arrived for the meeting, the employer was in a meeting with somebody who was not an employee of the company, he may have been a customer, but it was a business meeting.

The employer concluded the meeting with this person by telling him he had to cut the meeting short as there was an employee waiting for him regarding a disciplinary matter, and went on to diclose to theis person the details of the meeting he was about to have with my dad.

When my dad went into this meeting he confronted the employer about his conversation, and he completely denied it. My dad then managed to call the guy back in and requested a business card from him, at which point the employer blew his top and said my dad was out of order and that he had no rights listening in to a private discussion. Not that he had a choice as you could hear it outside the office.

 

This is a complete, 100% breach of confidentiality, he had NO business whatsoever discussing the private matter with any outsider, much less a potential client!.

This is going to be interesting...

 

In the meeting the employer said that as far as he was concerned my dad had walked out of his job when he went home that day and that was that. He says he is entitled to no notice period, holiday pay, sick pay or anything else as my dad walked out. My dad told the employer he disagreed with this but the employer did not want to hear anything about it, the meeting was concluded.

 

This is complete and utter bull****. He was sent home after being told that there was no work available, but yet now they are taking it as a resignation..basically they are just trying to get rid of him and avoid having to pay redundancy, a contemptable tactic which is becoming more and more the norm of late.

He IS entitled to sick pay, a notice period and out standing holiday pay, plus he is entitled to have written reasons behind his sacking, These are basic obligations on the employers part and cannot be circumnavigated.

 

My mum phoned the employer later that day to ask about his sick note as they needed it back, the employer then said he had not decided if he was going to pay my dad any sick money and that my mum should call back Monday (today)

When my mum called back he said he still had not decided what he was going to do, but that in his opinion my dad had resigned.

 

He doesnt get to decide wether he pays sick pay or not, its an obligation.

Also, if in his opinion your dad has resigned, he is obliged to provide evidence of this resignation, which he will have trouble doing being as it never happenned.

 

It waspointed out to him that my dad has never written and oficcialy resigned. The employer also said my dad had resigned before christmas and that he was suprised to see him on the 5th January when he retuened, again my dad has never submitted a written resignation, as is required by the terms of his contract.

 

nail = in coffin

 

My mum then asked when he would be getting his notice pay, holiday pays etc, to which the employer replied, never.

My mum asked why, when he had sent everyone else on the ACS courses, he had not sent my dad, he said he was not spending another penny on my dad after what had happened with the national insurance penalty as my dad had refused to pay half the bill.

 

OH HO!, now we see the REAL reason for all this......

It has nothing to do with your fathers performance, it has everything to do with his employers vindictivness stemming from a mistake he made when doing his tax return, which he expected your father to cough up for.

 

My mum has to call back tomorrow to see if he has made a decision on the SSP and I have said to try and get the call recorded to see if he makes that statement again.

My dad has contacted ACAS and we have to write him a letter asking for him to advise what his decision is, they say that my dad has not resigned and that the employer must decide on either sacking my dad, putting him on notice or making him redundant. My dad has never has a verbal, written or final warning in his time at the company.

 

From what has been said above can anyone offer any advice?

 

Yes, definitely lodge a formal written greivance, stating everything you have stated here (including what the real reason for his sacking is) and INSIST on a written response within 14 days, also, nip down the the CAB and pick up a form ET1 and get ready to fill it in and file for an employment tribunal.

Once the boss fails miserably to explain his vindictivness, and the reason why he has decided that he doesnt have to abide by employment law, then fill in and file the form ET1 and wait for a tribunal date.

 

The way i see it, your dad has a cast iron case for unfair dismissal as well as varying degrees of discrimination and unlawful deductions from wage.

 

 

PS my dad has also spoken to the foreman recently who has confirmed that he has spoken to some of the other employees present on that Monday morning, and they have told him that the employer did tell my dad he had no job for him, can he request a statement from the foreman to support this fact? and is the foreman in a position to refuse this request?

[BeauBrummie]

Hi dori2o,

 

A catalogue of errors to say the least, so sorry to here that your dad is being treated this way.

 

The disciplinary hearing should not have been allowed to continue without all parties present--your dad had a right to adjourn until his requested co worker was available.

 

The so called "contract" is as godpikachu has intimated is very ambiguos, besides what has already been posted, what about the rate of pay ? "As per your Payslip" that is just not acceptable in this day and age. Also the holiday entitlement is below the statutory minimum at only 18 days it should be at least 2 days or 4.8 weeks for a 5 day week. It seems to me that this statment of terms and conditions has been used for something else and adapted very badly.

 

I would suggest no further phone calls ---Write--- give time limits for a reply and if the employer does not comply, a further letter confirming that your father will consider proceedings which could be for wrongfull or constructive dismissal, which I would suggest there is a strong case to answer.

 

Above all keep everything that has been said and done so far documented with witness back up if you can, this will be usefull should this case end up in a tribunal.

 

Beau

[dori2o]

Thank you for your help. Can anyone comment on this draft letter.

 

I am writing to you following the disciplinary meeting that was held at Units ***********************************

I am saddened that a business relationship that has lasted some 15 years or more, has now deteriorated to the situation we currently find ourselves in. I have always considered myself not only an employee of yours, but also a friend.

I feel that the deterioration of our relationship started following the decision of HMRC to change my employment status from Self Employed to an employee, and the subsequent penalty that your company had to pay in relation to unpaid Class 1 National Insurance contributions.

You have always been of the opinion that I had agreed to pay half of this bill. However, there is no responsibility for me to pay anything towards Class 1 National Insurance contributions. It is the responsibility of the employer to check the employment status of those people who work for them.

I have never signed any agreement to pay part of this bill.(put this line after where you say opinion that I had agreed etc )

I understand that during a telephone call with my wife, where she enquired as to why I was the only employee who was not sent on the ACS course in order to renew my qualifications, you said that after what I had done to you with regards to the HMRC stituation, you would never pay for anything for me again. I find this to be discriminating as I had done nothing wrong.

During the disciplinary meeting at the above address dated 5 March 2009, you advised that in your opinion, I ended my employment with you when, after being told I had no work for the day, I went home on Monday 16 February 2009.

At no time have I ever given you written notice of my intention to resign my position within your company. As per the terms and conditions of employment with *********** Ltd, a copy of which was provided to me recently, it clearly states ‘After one months service you are required to give the company 1 weeks notice to terminate your employment.’ I have never done this.If you believe written notice was given,in compliance of procedure,then perhaps you will furnish me with a copy of the same.

I will take this opportunity to again stress that on the day in question, Monday 16 February 2009, I arrived for work on time and waited for further instructions with regards to what my duties were to be for the day. It was then that you informed me, witnessed by other employees who were also awaiting instructions, that I did not have a job. As per the conditions on my contract of employment, where it clearly states that my basic contractual hours are 40 per week and are determined by the work in hand, and that I may be put on short hours or suspended from work without pay if there is no work available. I advised you that I would go home. I did not as you claim tell you to ‘stuff your job’, I simply got into my car and returned home.

I do not accept your decision that I terminated my own employment at this time, and that until you advise me that you have terminated my employment I remain an employee of ************* Limited. You have continued to include me on the payroll for the pay periods immediately following the incident, despite your claim that I terminated my own employment. You have also retained the sick note that I sent in on 18th March, and you have not issued me with a P45.

Further to this, I would expect that as an employee of ************ Limited, you have a legal obligation to continue to pay what I am legally entitled to, this includes Statutory Sick Pay. This is a legal obligation you must provide as is set in Statute under the Employment Act. You are aware that I have back and knee problems and have had them for some time. I have however continued to come to work despite pain I have been in.

I also object to your behaviour shown directly prior to our meeting. When I arrived for our meeting it was clear that you were already engaged in a discussion with ************. Sitting outside the office unfortunately I could overhear what was being said. When you closed your meeting with Mr ************* you advised him that you were meeting with an employee with regards to a disciplinary matter and proceeded to talk about it with him. This gentleman as far as I know is not an employee of the company, and the meeting that we were to have was confidential between the people who were involved, that is you and I. You have breached this confidentiality.(he could claim that either you should not have been listening or that it was priviledged to you )

Having been in touch with ACAS since this meeting, they have advised that I should now request from you, written confirmation of the following.

1)The minutes of the meeting dated 5 March 2009, these minutes should reflect the actual conversation that took place and have to be signed by both you and I. I suggest that sending 2 copies of the minutes signed by yourself would enable me to send back a signed copy, should I feel that they actually reflect the meeting.(this is presumption-better to say-send back a signed copy, as my satisfaction that the contents are a true account and reflection of the meeting.)

 

2)Copies of the evidence you have used to support your decision following the meeting.

 

3)Confirmation of your final decision, and details of how you intend to resolve this matter which should be in one of 3 ways

 

(i)·Terminate my employment, advising when my date of termination is, and if immediate, confirming the details of when I can expect to receive my pay in lieu of notice and the calculation used to arrive at the payment, details of outstanding holiday pay, and the outstanding sick pay that I am due.

(ii)·Put me on notice, i.e. give me a verbal, written or final written warning.

(iii)If the option is available, confirm that my position has been made redundant, and confirm the date that this is effective from and the details of the redundancy pay and any other outstanding payments due.

I believe everything in this letter is a true reflection of the incidents that have led to this unfortunate situation. I respectfully request that you respond to this letter within 14 days in writing. This is the only way I wish to pursue resolution from hereon.Should you fail to respond, or not respond positively, I shall have no alternative but to prepare papers for submission to an Employment Tribunal,and a copy of this communication will be made available for their considerations.

 

 

 

 

 

 

 

Will ask Ellen to give a check also

Edited March 10, 2009 by MARTIN3030

[godpikachu]

thats spot on as far as i can see, id love to see the guys face when he reads it.

 

make sure though that you stress that you will only accept any furthur communications in writing, telephone calls will not be accepted and that if he wishes to arrange any furthur meetings you will only attend if accompanied by a witness, and will require a copy of the minutes giving on the day the meeting takes place.

 

*edit*

 

I d also mention the bullying and harassment he has been under from the boss as well, and state that this alone entitles him to a discrimination and bullying claim.

 

also, separate the final 3 options (sack, redundancy etc) into clearly defined bullet points, so that he knows his options and the consequences of them.

Edited March 10, 2009 by godpikachu
extra bit

[MARTIN3030]

Sorry-forgot to add that it was me !!

[MARTIN3030]

Godpikacho-the letter clearly seeks a response IN WRITING so theres no defence on this if it doesnt come.

 

Soz-was left off but is there now.

[godpikachu]

Godpikacho-the letter clearly seeks a response IN WRITING so theres no defence on this if it doesnt come.

 

Soz-was left off but is there now.

 

i said that it should be clearly included in the letter so as to stop the boss type guy from ringing him in the meantime and discussing things over the phone, then simply sending a letter stating "furthur to what we discussed on the phone, those terms apply yadda yadda etc etc ad nauseum"....by the sounds of it the guy would do that sort of low down trick and then try to explain it away at an appeal/tribunal with his own version of events and the OP wouldnt have anything to back it up, unless the call was recorded somehow.

[MARTIN3030]

Yes its a thought,but if theres an attempt on that tac-then its a case of just refusing to discuss anything further by phone.

 

As regards the bullying and harassment-these are serious allegations that would require evidence to support them-by all means if that evidence and proof is conclusive then fair enough-otherwise I would be inclined to let the facts that CAN be substantiated speak out.

[godpikachu]

oh of course, if there is evidence it should be included, nothing wrong with mentioning it at this point though, as the bullying etc has been coming from the boss himself!.

[dori2o]

again thank you all very much.

[Ell-enn]

Hi there, if the employer refuses to pay SSP then he needs to give the employee a SSP1 Form stating the reason why he is not paying it. He also has to return the sick note. You would then take the SSP1 form to the DWP who will either make the employer pay it, or if their reason meets the criteria the DWP will pay it. Also SSP comes under the Statutory Sick Pay Act 1994.

 

I'm also concerned about the wording in the contract regarding the hours of work i.e. 40 hours per week but may be reduced or suspended!

 

Try to put the separate issues in your letter under bullet points just to make it easier to read and understand.

 

Ell-enn

[dori2o]

There has been an interesting development.

 

The employer has today called my Dad, who is out at the moment helping my brother finish off a job, but the employer spoke to my mum.

 

He seemed to be a lot calmer today than he has ever been (has he taken some legal advice?)

 

He said he would like to arrange another meeting with my Dad at a place and time to suit him, and he agreed to any other requests my Dad wanted.

 

My mum said they would call him back tomorrow with their answer. Now I think this maybe the employers way of setting my Dad up for a fall, but I may be wrong.

 

When he goes into the meeting I would like to give him a list of things to bring up and try to resolve, can anyone suggest anything I should put on the list?

[dori2o]

ET1 form submitted on 5 March 2009

 

Confirmed received and accepted by ET 9 March 2009.

 

Today we received a telephone call from the employer, my wife passed me the call as she is unable to deal with this at the moment as is too upset to do so.

 

Heres a transcript of the call.

 

Thursday 12 March 2009 Call taken at 12:53 by ********

Mr Ashad called in reference to the ET forms he had just received. He asked if Ann could confirm when she started working for the company and what holidays she had taken, he also wanted a copy of the employment contract as he did not have one.

I explained that we would not deal with any thing via the telephone and requested that he put his enquiries in writing. He explained that he cannot reply to the forms without this information and that the ET had told him to contact us to get this information.

I again explained that my wife would not deal with any telephone calls and that all correspondence should be in writing so that a full record can be kept.

He then said, that he had on tape, details of what happened when we went into the shop the day after she was made redundant, which happened to be payday. (All my wife wanted was her final salary whiuch had not been paid into the bank. After much arguing I lost my rag and said if he did not pay her I would take the money from the till myself, the manager called me a F’ing B*****d and threatened to call the police, at which point I left the shop. The caller today said that the police had a copy of this and he may press for charges to be brought in light of this matter now being nrought to ET.

I asked the caller to confirm that If my wife did not stop the claim, he would ask the police to prosecute me, he confirmed this. I then said I would contect the tribunal to advise themn he had tried to blackmail us and that I would also be contacting the police as this is a criminal offence. He then backtracked and said this not at all what he meant.

He said he had written to the previous owners of the shop who first employed my wife and had asked for a copy of her contract and the details of the holidays taken etc, but the had yet to return this information. He again asked if we could provide this information, I advised that it was his responsibility as the employer to provide this information, not my wifes.

He said that we wre trying to delay him from submitting his forms and that he would have to tell the tribunal. Idenied this and advised him that the fact he did not have this information should not delay his confirmation that he is to defend this claim, and that all the information he would need would not be needed untilthe Case Management meeting.

He repeatedly asked for my wife to go into the shop and discuss this with him, but my wife refuses to due to the way she was treated, also she wants me to be the one to deal with all this as she has no idea what she is doing, I am named as the representative on the ET forms.

I again explained that all correspondence should be in writing and requested that he does not call this number again as this is my telephone not my wifes (this is true I pay for the contract).

He then asked what kind of compensation were we looking for. I explained that this would be set at the discretion of the tribunal. Then he said that he wanted to settle this and asked what it would take to settle. I advised that if he put in an offer in writing we would consider it and respond to it.

He said that he had no experience in this area and that he does not know what to offer. I explained that there was a local case, very similar to my wifes, quite recently where the employer made a young lady redundant without following the correct procedures, only worked 16 hours per week, as did my wife, but was awarded £4000 by the tribunal.

The employer said he was not willing to pay this when my wife had worked for him for only 3 months (The shop was taken over by new owners in Nov 2008, but my wife started working at the shop in June 07).

I again asked him to write to us, and if he wanted to settle the matter to put his offer in writing.

At this point I had been talking about 20 minutes and advised the caller that I was very busy and needed to end the call. Call ended.

Can anyone suggest what we should do? Edited March 12, 2009 by dori2o

[godpikachu]

so despite a reasonable request he is refusing to put anything in writing?, and is attmpting to blackmail you with the threat of criminal prosecution?, despite the fact that you did not take anything from the till.

 

I very much doubt the police would entertain the case, if they have already been given the CCTV or whatever of the incident, then they would have been to see you already, at the most, all he is entitled to for this incident is an apology for you losing your temper, and you are entitled to an apology from himfor him swearing at you.

 

You do have a good case for unfair dismissal there, as your wife was not made redundant, as her job still exists and is being done by someone else, plus the alterations to her working hours without consent represent a breach of contract.

 

Other than him saying "he needs your wifes contract etc", has he given a reason for wanting this paperwork?, if he doesnt have a copy of her contract then that is his fault for not checking this at the time he bought the shop, as to me it sounds like he fully intended at the time of purchase to replace the existing staff with relatives/friends.

Not being racist here but that is what asians tend to do when they own businesses, as they prefer family members as employees because they are people they can trust.

 

How long does he have left before the 28 days you have given him run out?, if the deadline has been and gone, then file your ET1 ASAP, as he has not responded as you requested him to (ie, in writing).

I would also make mention in your form that he is attempting to blackmail you into dropping your claim, this will be frowned upon.