Jump to content

You can now change your notification sounds by going to this link https://www.consumeractiongroup.co.uk/index.php?/&app=soundboard&module=soundboard&controller=managesounds

 

You can find a library of free notification sounds in several places on the Internet. Here's one which has a very large selection https://notificationsounds.com/notification-sounds

 

 

BankFodder BankFodder

 

BankFodder BankFodder


Chrisall

Polkey - please can someone explain?

style="text-align:center;"> Please note that this topic has not had any new posts for the last 4035 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

Hi,

 

I've been to see my solicitor today about my unfair dismissal claim against my previous employer. I believe that it was procedurally unfair because they did not follow the 3-step procedure as they did not issue a step one letter, consult properly, nor inform me of my right to appeal. I also believe that it was unfair because my job was not actually redundant and is now being done by somebody else.

 

My solicitor says that although yes it is procedurally unfair and thus automatically an 'unfair dismissal' the polkey principle will apply. My ex employers have responded on the ET3 that they would have made me redundant anyway.

 

Please can somebody confirm that this is correct?

 

Thanks,

Chrisall

Share this post


Link to post
Share on other sites

IN the last 30 odd years the law seems to have changed 3 times regarding Polkey and hence I always find this so confusing.

 

But anyway, I presume your dismissal was pre 6th April 2009?

 

Thus the 'old' law applies and therefore, "... if the employer satisfies the tribunal on the balance of probabilities that the employee would have been dismissed even had fair procedures been adopted, then the dismissal must be held to be fair. If the tribunal finds that there would have been a chance of such a dismissal but falling short of 50 per cent then the tribunal must find that the dismissal was unfair but reduce the compensation accordingly in line with the Polkey decision."

 

Hope this helps

 

Che


...................................................................... [FONT=Comic Sans MS]Please post on a thread before sending a PM. My opinion's are not expressed as agent or representative of The Consumer Action Group. Always seek professional advice from a qualified legal adviser before acting. If I have helped you please feel free to click on the black star.[/FONT] [FONT=Comic Sans MS] I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.[/FONT] [FONT=Arial Black][FONT=Comic Sans MS][COLOR=Red]'Venceremos' :wink:[/COLOR][/FONT][/FONT]

Share this post


Link to post
Share on other sites

Hi, thanks for the reply. Yes the dismissal was 12/08 so the old law applies. I think I understand where the solicitor is coming from now - at the moment he's trying to work out if he can take the case on a no-win, no-fee basis. If it transpires that Polkey is applied then the answer is likely to be 'no'.

 

Cheers,

Chrisall

Share this post


Link to post
Share on other sites

I'm confused a bit. Were you made redundant or were you dismissed? If you were dismissed then it wouldn't make an ounce of difference if your job is now being done by someone else.

 

The other thing to consider is the reason you were dismissed. If it was for gross misconduct the three step procedure doesn't apply.

 

Sorry to be jumping in on the thread and I am certainly not an employment expert but I'm confused, as you say you were dismissed but then mention that you don't think it was a fair as your job isn't redundant?

 

I'm not poking holes in your post, you've seen an employment solicitor and clearly he/she will know what they are doing, I'm simply asking for claification as people are often confused that there is a difference between being made redundant and being dismissed, and that the three step procedure doesn't apply for gross misconduct. It would clear up confusion for posters who don't understand this.

Edited by ErikaPNP

My advice is based on my opinion, my experience and my education. I do not profess to be an expert in any given field. If requested, I will provide a link where possible to relevant legislation or guidance, so that advice provided can be confirmed and I do encourage others to follow those links for their own peace of mind. Sometimes my advice is not what people necesserily want to hear, but I will advise on facts as I know them - although it may not be what a person wants to hear it helps to know where you stand. Advice on the internet should never be a substitute for advice from your own legal professional with full knowledge of your individual case.

 

 

Please do not seek, offer or produce advice on a consumer issue via private message; it is against

forum rules to advise via private message, therefore pm's requesting private advice will not receive a response.

(exceptions for prior authorisation)

 

 

 

 

Share this post


Link to post
Share on other sites

Hi Chrisall,

 

On face value from what you have said I'd get another Solicitors opinion. The Polkey priniciple only applies in cases where the employer has made a minor mistake with the statute process, and as such wouldn't have made any difference anyway. You say that they avoided all three steps. That is hardly a minor mistake. Therefore I would alledge that your solicitor is misinforming you

 

I take it your Solicitor is a specialist in employment law and not just some generalist lawyer?

 

Further, you need to make it quite clear as to whether you you were dismissed or made redundant thoughI read it at the moment as being made redundant.

 

Gross misconduct procedures still have to follow the same guidelines as any other disciplinary.

 

I would also write to your previous employer without delay asking for a copy of your employment record as this could be crucial. There is a time limit on this though. They have to give it to you.

Share this post


Link to post
Share on other sites

I disagree. Gross misconduct can carry a penalty of the termination of employment with immediate effect, and the three step procedure can be abandoned, so long as they have the evidence that the gross misconduct was perpetrated by that member of staff.


My advice is based on my opinion, my experience and my education. I do not profess to be an expert in any given field. If requested, I will provide a link where possible to relevant legislation or guidance, so that advice provided can be confirmed and I do encourage others to follow those links for their own peace of mind. Sometimes my advice is not what people necesserily want to hear, but I will advise on facts as I know them - although it may not be what a person wants to hear it helps to know where you stand. Advice on the internet should never be a substitute for advice from your own legal professional with full knowledge of your individual case.

 

 

Please do not seek, offer or produce advice on a consumer issue via private message; it is against

forum rules to advise via private message, therefore pm's requesting private advice will not receive a response.

(exceptions for prior authorisation)

 

 

 

 

Share this post


Link to post
Share on other sites

Hi sorry for the confusion. I was made redundant not dismissed, my mistake in the previous post.

 

What happened was that I was called in by my manager who told me that part of my job was being outsourced to another of the group's companies. I then had a meeting with a group HR person who initially told me I was going to be TUPEd to the other co and I was to have a meeting with them, or I could take redundancy there-and-then or stay another 6months & take redundancy then instead. When I met with the other co they told me that it wasn't a TUPE but there might be a job available and I could apply if I wished. I then had to have another meeting with HR during which I was made redundant. Throughout the 'consultation' nobody could answer the questions I asked about what my new job would entail, who I would report to, where I would be based etc. The final meeting when I was made redundant was supposed to be just to agree the way forward.

 

I used to work with a lady who was on maternity at the time all this was going on - she had the same initial meeting with HR and the meeting with the other co, but she wasn't made redundant. She returned to her job before my notice ended and carried on doing the majority of the same job as before. The co also employed someone new to do the part of the job that was 'transferred'.

 

I was not given a step 1 letter, I don't believe that proper consultation took place and I was not advised of my right to appeal. Unfortunately, me being a smart-ar*e I did know about my right to appeal because I read-up on the internet and so did appeal. The appeal found against both my grievance and redundancy.

 

In their ET3 the co says that I was put at risk in the letter from HR (allthough that letter contained a pack of lies). They claim that consultation took place and also that I knew my right of appeal so it doesn't matter that they didn't inform me of it. They claim that their mistakes are just 'errors of form' (or some such term). They also claim I would have been made redundant anyway and that I wasn't pooled with the other lady and therefore no selection criteria was necesary. My solicitor says that they are just setting themselves up for a Polkey reduction.

 

Any opinion / advise would be welcome.

 

Cheers,

Chris.

Share this post


Link to post
Share on other sites
They claim that consultation took place and also that I knew my right of appeal so it doesn't matter that they didn't inform me of it. They claim that their mistakes are just 'errors of form' (or some such term)

 

Oh what a lovely attitude they have!! Of course it matters, they should nevertheless be professional and have a duty to inform of right to appeal. You may have known your rights of appeal, but how could they be sure you knew how to go about it?

 

I'm sorry I cannot offer any further help, redundancy is not my forte, I'm afraid. I only know the basics of redundancy so am not best placed to advise.


My advice is based on my opinion, my experience and my education. I do not profess to be an expert in any given field. If requested, I will provide a link where possible to relevant legislation or guidance, so that advice provided can be confirmed and I do encourage others to follow those links for their own peace of mind. Sometimes my advice is not what people necesserily want to hear, but I will advise on facts as I know them - although it may not be what a person wants to hear it helps to know where you stand. Advice on the internet should never be a substitute for advice from your own legal professional with full knowledge of your individual case.

 

 

Please do not seek, offer or produce advice on a consumer issue via private message; it is against

forum rules to advise via private message, therefore pm's requesting private advice will not receive a response.

(exceptions for prior authorisation)

 

 

 

 

Share this post


Link to post
Share on other sites
I disagree. Gross misconduct can carry a penalty of the termination of employment with immediate effect, and the three step procedure can be abandoned, so long as they have the evidence that the gross misconduct was perpetrated by that member of staff.

 

To a greater extent, Erika is quite correct however the employer must show that an investigation took place, and for that to happen it generally means that a suspension will be involved. Further, they have to inform the employee as to why it is happening and the right to representation and appeal. However, in some cases all the employer has to do is prove that that they acted without malice and this can be difficult to disprove.

 

Now the situation is more clear, and we know it's a redundancy situation, yes it does seem that with regards to the current situation, the employer could well be trying to mitigate the situation which in itself is an admission of guilt.

 

But, as I have pointed out earlier, a major failure of adhering to process is no excuse or really a credible defence in my view.

Share this post


Link to post
Share on other sites
Further, they have to inform the employee as to why it is happening and the right to representation and appeal.

 

I wasn't advised of my right to be accompanied either, although I read up on the subject and was accompanied at the final meeting when I was made redundant. My rep told me afterwards that HR bloke had met with him before me & had told him he was going to make me redundant that day. So basically, I turned up for a meeting supposedly to 'agree a way forward' when the outcome had already been pre-determined.

 

Thanks for all the replies btw!

 

Cheers,

Chrisall

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...