Accident at Work

[honeybee13]

Well it's over at least. Sorry about teaching you to suck eggs over Atos! I didn't realise your background. A little off topic, but there will be plenty of advice on the CAG Benefits forum if you need it. That forum has a conspiracy theory that the wait is to see if someone can sit comfortably and that there are cameras about in Atos receptions.

 

We'll wait to see how you're getting on. Have a good weekend.

 

HB x

[joesoap]

Solicitor has now made a response, he has applied for a time - out as the ET1 wasn't received timeously by the ET. This is true up to a point as when the ET1 was submitted electronically, the ET system wasn't working. I 'phoned the ET when we didn't get an acknowledgement and explained the position which was accepted. Typical solicitor, he applies for a time out AFTER he returned from his holidays having previously requested an extension for his response and all this BEFORE he even received the papers but having told the EJ that it was a complicated case. Dirty Tricks on the move. Obviously, Mrs S has objected to this application to strike out.

 

He has also challenged the Constructive Dismissal claim of course. He is saying that Mrs S affirmed her contract of employment by continuing her employment from the date (10/09) she learned of the decision that she fraudulently (their words of course) made an accident claim until she gave notice of her resignation in February. That letter indicated that they would commence disciplinary action which they did not do although they had three weeks to do so before she went off sick. That's even discounting the length of time between the acciden (8/09) and the letter in October, especially as they had made up their minds that an accident hadn't occurred as early as 5/6 days later. Personally, I think the solicitor is clutching at straws as he says the above in one breath and in another he's telling the ET that the employer tried to get her to withdraw her resignation. Why would they do that if they were going to dismiss her in October? He then goes on to say "if the claimant is held to have been constructively dismissed, , which the respondent denies (he keeps saying this), that dismissal was fair due to the seriousness of the claimant's actionsin making a false works claim". It wasn't serious enough for the employer to take action following the letter of 20/10!!!!

 

Sorry for the long windedness. Does anyone know if we can respond to his response or will Mrs S have to wait until ACAS contact her.

 

Cheers everyone.

Edited September 2, 2010 by joesoap
additional text

[honeybee13]

Hello Joe. I don't know the answer to your question, sorry, but I'm sure someone will be along who does. It sounds like clutching at straws to me, shocking behaviour. Stand your ground and don't be bullied. I'm sure you've read enough posts on the forum to know how the 'other side' tend to behave and your lot sound typical.

 

My best to you and Mrs Joe, HB

[joesoap]

Well well, back he comes again. Sent him a copy of the Email we've sent to the ET objecting to the strike out. He now wants a copy of the Email that I sent to the ET with the ET1 and is asking for proof that I spoke to an ET clerk. I remember asking her to make sure that she made not of our conversation on the database. Sent him a copy of the Email and a copy of the acknowledgement I got back.

 

Honeybee, clutching at straws seems to be spot on.

[honeybee13]

Well you're standing firm, good for you. I never cease to be amazed at the array of tactics the professionals try on. How is Mrs Soap taking it all?

 

My best, HB

[robbond55]

Just to say that I can't add anything useful to this but to just wish you the best of luck with this.

Regards,

Rob

[joesoap]

Just to say that I can't add anything useful to this but to just wish you the best of luck with this.

Regards,

Rob

 

Thanks Rob, any encouragement gratefully accepted. He's back again though.

 

Their solicitor (I often wonder if he's reading about himself on here!) must think he can't win as he's still pushing for the strike - out on the time limits. He's asking for a copy of a non - existent Email from a certain date!

[Allwood]

Just a though maybe the reason that they have been delaying is because if Mrs S claim for benefit is refused then they will run with that.....I have not read all of the threads, as it is just a though

[joesoap]

Mrs S received a copy letter from the ETS to the Solicitor accepting his response and advising him a hearing date will be allocated. There is no mention of the strike - out so I imagine the useless **** has failed with that. Now, this may seem petty but I perused the Response more carefully than I did last week. When completing her application form, Mrs S advised the ETS that she was paid Monthly and the rate. She does of course, have the pay slips to prove this. On his response, the solicitor has stated that Mrs S was paid weekly. While it may be a slip by him, my personal opinion is that he is trying to discredit my wife by trying to show the ETS that she is unable to complete a form. As I say, this may be petty but as far as I am concerned the response has not been completed correctly and I should apply to have it struck out; get one's own back I think I could call it. Any comments please?

[papasmurf1cx]

Hi Joe.... coming late to this thread.... is the hearing date a full hearing of the case or a Case management discussion?

[joesoap]

Hi Joe.... coming late to this thread.... is the hearing date a full hearing of the case or a Case management discussion?

 

Hi papasmurf1,

 

Mrs S hasn't been told anything yet, only that the respondents response has been accepted and a date will be notified, but if you've read above you'll know that I don't think it's been completed correctly.

 

After submitting her ET1, ACAS did get in touch with her and asked if she would agree to concilliation, she has nothing against this as she has been off sick with anxiety/stress since last November. However, if necessary she will go to a tribunal. ACAS has now received the response so I woujld imagine she will get another call from them. Looking at the response and the very fact that the solicitor has been trying to get her claim struck out, Mrs S believes, as I and many friends do, that the respondent's case is very weak. We could blow part of it out of the water, no problem. I don't believe though that the respondent will agree to concilliation althpough I do have to say that Mrs S asked for very little compensation and only did so because she could not get an apology. Anyway, back to your question; as we've not exhausted the ACAS route yet I imagine that the next step will be a case management discussion. As we've not been involved in anything like this before I do confess that "I'm feeling my way around" and need to read up and ask a few more questions.

[mariefab]

I'm a bit concerned that the respondent's solicitor may be on to something.

 

On what date did you submit the ET1?

On what date did Mrs Soap resign?

How much notice did she give?

How long had she worked there?

[joesoap]

I'm a bit concerned that the respondent's solicitor may be on to something.

 

On what date did you submit the ET1?

On what date did Mrs Soap resign?

How much notice did she give?

 

Hi Marie

 

In a way you are right to be concerned, however:

 

The ET1 was submitted electronically on 15th July but as we received no acknowledgement within 5 days I rang the ETS and explained. They requested that I send an Email with the ET1 as an attachment which of course, I did do. The EJ saw the ET1 and passed no comment. Their solicitor made judgement on the case before he even saw the papers! I've covere3d this earlier.

 

Mrs resigned on 16th April 2010 so 15th July was the last date. She waited until the last moment as she has been off since last November with stress/anxiety and didn't think she's be strong enough. She dedided to give it a go though.

 

As required by the company's rules, Mrs S gave one month's notice. The company did not accept it at first as she had instigated a grieveance. They finally did so a month later.

 

Mrs S worked for the company for eight years.

 

I believe that the solicitor pushed for time out because his case is poor (but I would think that, wouldn't I being an optimistic person). This company is very large (and currently up for sale) and you possibly eat their biscuits/snacks, Lol. On the site where the accident occurred they have a work - force, fork lift trucks, cherry pickers and complicated packing machinery. At the time of Mrs S's accident, the company were boasting over 500 consecutive days of Riddor accidents, it is now over 800. This is almost impossible. Indeed, Mrs S knows of at least 3 cases where accidents have occurred and should have been reported to the HSE. Instead, employees came into work and spent their time sitting in the canteen on full pay!

 

Sorry to be so long - winded.

 

J

[mariefab]

I'm still concerned that the date that the Tribunal claim was submitted was 3 months less 1 day from 16th April, the date that the employer finally accepted that Mrs Soap's was ended.

 

The reason for my concern is that the Tribunal will seek to establish the effective date of termination (EDT) for the purpose of deciding whether the claim was submitted in time.

Mrs Soap resigned before 16th April giving a months notice. She had the right to resign when she chose. It was an employment relationship not ownership.

Just because the employer wouldn't accept her resignation doesn't make her resignation any less valid.

The EDT is not established by looking at when the employer stopped paying the employee either.

So, my worry is that the Tribunal is unlikely to hold that the EDT was 16th April based on the facts that the employer finally agreed to end the employment and cease paying Mrs Soap on that date.

 

That said, Mrs Soap had worked there for 8 years.

Was it 8 complete years by the time Mrs S sent her resignation letter?

If so, then the period of notice required would have been 8 weeks not 1 month, for the purpose of establishing the EDT.

So check the date, 1 day after, the date that Mrs Soap resigned and count forward 8 weeks.

What date does this give you?

[joesoap]

Mariefab, thanks for your input (apart from the maths lesson, I left that behind 43 years ago). It is appreciated. Can you point me in the right direction foir the rule please, I can't seem to find it. Yes, Mrs S worked for the company for 8 complete years but in accordance with their rule book, only 4 weeks notice was required. Their solicitor just seems to be making a big thing about the 15th of July, nothing else! Mrs S has been off for nearly a year with stress/anxiety, she is nearly at breaking point and won't go on much longer with this.

[honeybee13]

Hello Joe. I can't help with the technical part of this, sorry, but Mariefab is your man, so to speak .

 

I just wanted to say that I understand how suspense and delays affect someone with stress and anxiety. I feel you're reaching the end of all this and just hope that you and Mrs Soap can hang on in there. I really don't think now is the time to give up, hope I'm right.

 

My best to you both, HB x

[mariefab]

Hi Joe

Please forget about the 8 weeks thing that I posted earlier.

I'm afraid that I was labouring under a misapprehension based on my failure to read all of the words in section 97 of the Employment Rights Act 1996.

Sorry.

 

I've just read the whole thread again and I'm a bit confused.

I'm not sure whether Mrs S has been constructively dismissed (hopefully not) or dismissed by her employer during an ongoing a grievance process or something else!

 

Mrs S first resigned by letter on 24th February giving 1 month or 4 weeks notice.

If this had been accepted by her employer the effective date of termination would have been around 25th March.

　

But her employer did not accept that resignation. They said that it was 'inappropriate' and that 'they could not accept her resignation while a grievance is in progress.'

Instead they and Mrs S followed a grievance procedure with the repeated expressed intention, on the employers part, of getting her to return to work.

This continued past what would have been the EDT if they had accepted the first resignation letter.

 

At post#133 the employer wrote, 'Within your letter to me you maintain your wish to resign.'

On what date did you receive this letter?

Can you tell us the date on which Mrs S resigned for the second time?

Was it in the letter (or email?) you refer to at post# 130 on the 15th April?

If so, did Mrs S give notice this time or not?

[joesoap]

First of all I'd like to thank everyone for their help and encouragement that you have given me and Mrs S. Sadly, following a triple whammy, she has decided to withdraw her claim.

 

The EJ has decided to have a Pre - Hearing review to determine whether or not the application was received in time. He has allocated two hours but Mrs S would have had to travel 40 miles (mind you, the respondent would have had to travel a lot further) when a tribunal sits a few miles down the road. She is just not up to attending.

 

Mrs S has been claiming ESA since April and had a "Medical" off ATOS in August. They have of course, given her NIL points but haven't taken into consideration anything that is relevant to her case; par for the course.

 

As a consequence, ESA was stopped on the 6th of September but she wasn't informed until the 18th. benefit was due on Thursday but there'll be nothing. This has delayed any other claim she now has to make. Trying to get answers is like trying to get blood out of a stone (it wasn't like this when I worked for the DSS).

 

Barring any last minute change of mind, Mrs S will be informing the ETS of her decision tomorrow. I'm trying hard to get her to reconsider but at the end of the day, when she has been off for nearly a year with anxiety/stress, I can understand her position. She just wants to move on.

[papasmurf1cx]

Hi Joe...... don't be too hard on Mrs S......... the MOST important thing is to get better but if she feels she cannot go through it then that is the right decision for her. You will find that she will get better very quickly IMO when the burdon of it all lifts from her.

 

Best of luck to you and her. Let us know if she feels better in a week or month or so.

[JonCris]

When there's an ET nearby the distance she is being asked to travel is a breach of the Francovitch Principal which states an ordinary litigant must be availed of the nearest court

[JonCris]

Also withdrawing the claim should be done 'without prejudice' thereby allowing you to bring a civil claim within the next 3 years

[joesoap]

When there's an ET nearby the distance she is being asked to travel is a breach of the Francovitch Principal which states an ordinary litigant must be availed of the nearest court

Thanks for keeping me informed JonCris. I'm probably reading it wrong but the bit of the Francovitch Principle I've read only mentions compensation. Am I reading it wrong?

[joesoap]

Also withdrawing the claim should be done 'without prejudice' thereby allowing you to bring a civil claim within the next 3 years

Sorry to be a pain but are you saying that Mrs S can bring a Constructive Dismissal later on if she's better?

[honeybee13]

Hello again Joe. I hope you find some way to carry on fighting with JonCris's help. I just wanted to say that I understand why Mrs Joe may not want to go ahead because when I was first ill I didn't have the mental strength to argue.

 

I think most of us think you have a good case, but if Mrs Soap can't cope at the moment, it could be the right decision right now. But if you find a way to fight later on, that could be very helpful.

 

My best to you both.

 

HB x

[joesoap]

Spent half of the night searching the Francovich Principle but couldn't find the relevant information; oh well.