Accident at Work

[joesoap]

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?

 

Hi mariefab,

 

don't worry, it's easy to be confused with this lot. Mrs S resigned from her post as she was put in an untennable position; she had an accident at work but the employer did not believe her. I know it was to do with reportable accidents under Riddor but that's another story. She subsequently input the ET1 on 15/7 but the ETS said they did not receive it. I 'phoned them on 20/7 and re - input the ET1. Strictly speaking one could say it was late but if there system is not working, I should not be held to account!

 

Mrs S's resignation letter is dated 24/2 in which she gave 4 weeks notice (23/3) as required. She raised a grievance at the same time. The employer wrote back on 26/2 and advised that as she was absent from work due to ill - health, they did not believe it to be be appropriate for the company to accept her resignation and urged her to reconsider her position while they made every effort to address her concerns that she had raised. Including the grievance appeal, the grievance investigationcontinued beyond what would have been the EDT had her resiganation been accepted.

 

Regarding post 133, that letter was received on 27/2 (Sat) or 1/3 (Mon). Mrs S re - iterated that she still wished to resign on 5th March. She did this in person as she was attending a grievance meeting at the time.

 

Best wishes, Joe

[mariefab]

OK, we have a few possible scenarios here.

 

1. Constructive dismissal

Mrs Soap resigned by letter; received on (let's say) 27th February giving 4 weeks/1 month notice.

The EDT would be 27th March so no matter what date the ET claim was submitted in July it would be way beyond the 3 month time limit.

 

2. Unfair dismissal

The employer refused to accept the resignation of 27th February and confirmed on 5th March.

The employer subsequently decided to terminate Mrs Soap's employment on 16th April.

 

I don't see how they can use the original resignation to justify this. It had expired weeks earlier, so it was no longer in effect, and Mrs Soap was co-operating with a grievance procedure the purpose of which (according to the employer) was to achieve her return to work.

 

They can't just pull out the resignation letter months later and decide that it says, ' I will be resigning on 16th April. signed Mrs Soap '

　

At post #133, on 22nd April, the employer says, ' it is with regret that I now accept your resignation '

Then, ' It is my understanding that on 16th April you received a full salary payment, I can confirm that your resignation will take effect from that date, and you will be paid in lieu of your notice period of one month. '

 

It seems to me that Mrs Soap was dismissed by her employer on 22nd April (the date that she received the letter/email quoted above?). In this case the ET claim was submitted in time

 

In my opinion the fact that the ongoing grievance procedure didn't appear to be achieving the employer's expressed desire to achieve Mrs Soap's return to work is not a particularly fair reason for dismissal.

So, it appears that Mrs Soap has an unfair dismissal claim.

This is much better than constructive dismissal because the onus is on the employer to show that there was a fair reason for the dismissal.

By the way, the employer should have given 8 weeks notice.

 

3. Something else?

In post #130 on 15th April you say,

' Have written to them today advising that she is not fit enough to attend any meetings and has re - iterated once again that she will not be withdrawing her notice '

 

Just to be clear, did they know that you sent them this? Or did it come from Mrs Soap?

Check that communication carefully to see if it could be taken for a 2nd resignation.

[joesoap]

mariefab, that info is brilliant. However, would I be able to ring the ETS and ask them to change the ET1 from Const. Diss to Unfair Dismissal?

[joesoap]

Hi mariefab

 

3. Something else?

In post #130 on 15th April you say,

' Have written to them today advising that she is not fit enough to attend any meetings and has re - iterated once again that she will not be withdrawing her notice '

 

Just to be clear, did they know that you sent them this? Or did it come from Mrs Soap?

Check that communication carefully to see if it could be taken for a 2nd resignation.

 

Mrs Soap sent them an Email on 15th April informing them that she was not fit enough to attend any meeting and would not withdraw her resignation.

[mariefab]

Mrs Soap sent them an Email on 15th April informing them that she was not fit enough to attend any meeting and would not withdraw her resignation.

 

What was the exact text of that email?

What we need to establish is whether there is any way that it could be interpreted as a 2nd resignation.

[joesoap]

Mrs Soap sent them an Email on 15th April informing them that she was not fit enough to attend any meeting and would not withdraw her resignation.

 

What was the exact text of that email?

What we need to establish is whether there is any way that it could be interpreted as a 2nd resignation.

 

Hi mariefab (again). Exact text of the Email:-

 

Thank you for your letter dated 12th April, received yesterday 14th April. Because of ill – health, I regret that I will not be able to attend the arranged meeting on Tuesday 20th April 2010. I have made a conscious decision regarding resignation; everything that has gone on has left me in an untenable position. I confirm that I will not withdraw my resignation.

I 'phoned the ETS before and asked if we could amend the ET1 from con dis to unfair dis. The ET told me that they already had it listed as Unfair Dismissal and mentioned breach of contract that the employer denies. We've never mentioned anything about breach of contract but their response does list that. What will happen is that if Mrs S goes ahead, the respondent will say that she was fairly dismissed as she "falsely submitted a false works accident claim", their words, not mine. The fact is Mrs S had an accident but the employer did not want to admit to it for reasons best known to themselves; they think! Their solicitor is saying that it was a serious action by Mrs S. I have to laugh at this as they made no move to suspend Mrs S after studying the injury report, they let her return to work after 4 weeks sick leave and still made no attempt to take her to task during a 3 week period. It was only after Mrs s asked the HSE rep if the accident had been reported that a few days later the warning letter came threatening disciplinary action. Mrs S remained at work doing her normal duties for the next 3 weeks when she went off sick. During that time, the employer again made no attempt to discipline her!

Hope that made sense.

Edited September 22, 2010 by joesoap
Grammar

[mariefab]

I have made a conscious decision regarding resignation; everything that has gone on has left me in an untenable position. I confirm that I will not withdraw my resignation.

 

Damn!

Is it just me or could that be read as Mrs Soap resigning again on 15th April.

Anyone?

[papasmurf1cx]

Sounds it to me. But I am not a lawyer, only speaking from a layman's point of view.

[joesoap]

I have made a conscious decision regarding resignation; everything that has gone on has left me in an untenable position. I confirm that I will not withdraw my resignation.

 

Damn!

Is it just me or could that be read as Mrs Soap resigning again on 15th April.

Anyone?

 

I guess so when I read it over and over.

[JonCris]

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?

 

The compensation was awarded against the Italian government because their courts failed to act in the best interests of an ordinary citizen by allowing the case to be brought miles away from the citizens home town thereby denying her a right to a fair trail.

 

In addition the EU found that the court did not scrutinize the WHOLE of the agreement for fairness but only those at issue in the said trial.

 

In other words any court MUST scrutinize the whole of an agreement & not just those referred to at trial AND which is why, in the opinion of many legal minds, the SC should have sent the bank charges matter to the European Court

[joesoap]

Well, no matter what Mrs S's decision is, I have had to laugh at the ETS today. I spoke to someone this morning and asked if they had heard of the Francovich Principle. No, was the reply. I explained about it and asked why Mrs S has to travel 35 miles to Thornaby when the Newcastle site is 12 miles away. No answer but the person says, "what's wrong with Mrs S travelling to Thornaby"? After a year on the sick with anxiety/stress, quite a lot says I, she doesn't travel very far. I had to 'phone later on as well but spoke to someone else, she hadn't heard of the Francovich Principle either. In all fairness, I hadn't so thanks to JonChris. Anyway, I had a whinge on why Mrs S had to go to Thornaby. Again I asked why. "Obviously someone in the ETS decided that it would be easier for Mrs S to get to Thornaby", says the clerk. How can that be when I live 12 miles from Newcastle but 35 from Thornaby. I guess I was becoming a pain. I pushed a bit more and was told that as I live in what is classed as South Durham (which is wrong), some clever dick decided that Thornaby was closer. I told her that I lived 4 miles from the Tyne/Wear boundary so how on earth can I be classed as South Durham?????? I gave up. Odds stacked against the ordinary litigant!

[papasmurf1cx]

Joe why not email into the ET and ask for it to be transferred to Newcastle. Explain how ill she is and as a reasonable adjustment under the DDA could the ET transfer it.

[joesoap]

Joe why not email into the ET and ask for it to be transferred to Newcastle. Explain how ill she is and as a reasonable adjustment under the DDA could the ET transfer it.

 

Hi papasmurf,

 

I Emailed the ETS this morning (see below) and I got a reply back from the respondent (below) but not yet from the ETS. Mrs S is a bit confused with the "cross - examining" statement as this is a Pre Hearing Review to determine whether the claim was made timeously. I may be getting mixed up; any thoughts anyone?

 

Further to the telephone conversations with my husband, I would like to request a change of venue if this is at all possible. I appreciate that it is a bit late in the day but I have been waiting for as long as possible to decide if I would be fit enough to attend. As you are aware, I have been off sick with Anxiety/Stress since last November and I feel a centre nearer to my home would be more beneficial, even if the hearing date is put back.

With the greatest of respect, I live in North Durham and 12 miles from Newcastle Quayside whereas Thornaby is 35 miles from my home address and I cannot understand why Thornaby was chosen as the hearing location. I believe that as an ordinary litigant, the hearing should be held at a centre closest to my home.

As time is of the essence, an early response would be greatly appreciated. I would also like confirmation that my husband can speak on my behalf at any Tribunal I attend.

Their reply.

The Respondent does not object to the change of venue, although would prefer to keep the same date for the PHR if possible.

I look forward to hearing from you with the decision as soon as possible, as I will have to alter my travel plans, and the sooner I can do that the better.

As for the Claimant’s request that her husband should speak on her behalf, clearly he is free to give his own evidence regarding the lodging of the claim, as it appears he was involved. However, if he gives any evidence which is in fact the Claimant’s evidence, that evidence should just be given the weight of a written statement, because I would not be able to cross-examine the Claimant on any such evidence.

[papasmurf1cx]

Hopefully that will do the trick. Perhaps some of the lawyers / barristers that read these can comment further.

[SarEl]

I've only had time to skim over the last couple of pages, so can't comment on much! But in terms of "constructive dismissal" / Unfair dismissal - although they operate differently in legal principles (budren of proof), they are the same thing. It's actually "constructive unfair dismissal". But on the point of the EDT - sorry, but it's impossible to call it. I could reas the e-mail either way, but I have to be honest and say that I am inclined to read it as confirmation of her earlier resignation, which would put the claim out of time. There is precedent, but I would have to look it up as I cannot recall the case off the top of my head, where an employer refused to accept the resignation (which it has been correctly pointed out here, they cannot do - it must be a mutual agreement which means Mrs S should have said she was withdrawing it) where an employer continued to pay the employee past their resignation date due to a grievance being ongoing, and the EAT upheld the date of the resignation because it was not withdrawn. But that doesn't mean that it defintely applies - case law is a funny thing and it depends on the circumstaces of the two cases. I would say that if the employer is arguing that the claim is out of time then it must certainly go to a pre-hearing review to determine jurisdiction.

 

I will try to find time to read up the 10 pages in the next few days and see if there is anything I can add, but broadly speaking from what I can see there has been some great advice given already.

[joesoap]

sarEl

 

Any input is greatly appreciated.

[joesoap]

Hopefully that will do the trick. Perhaps some of the lawyers / barristers that read these can comment further.

 

But hopefully not the one Mrs S is coming up against, Lol!

[SarEl]

But hopefully not the one Mrs S is coming up against, Lol!

 

Well it won't be me - I only represent employees

[joesoap]

Well, wouldn't you know, same time and same place but at Newcastle. Why couldn't they do that in the first place. Going to need some advice over the week - end.

[papasmurf1cx]

savour every little victory....... it give you both some self esteem !!!!!!

[joesoap]

savour every little victory....... it give you both some self esteem !!!!!!

Trying to papasmurf.

 

Mrs S got an Email off their solicitor this afternoon with copies of docs that he is going to rely on as evidence. However, we were advised that any docs that were going to be used should be sent to the court and anyone else involved at least 7 days before the hearing. Is he pulling a fast one? Going to have a think about a few things overnight and tomorrow when I get rid of the grandchildren.

[joesoap]

I guess no matter what happens on Tuesday, it'll not be for the want of trying. Looked through all of the respondent's stuff and he is definitely concentrating on the 15th of July. Mrs S has to convince the judge that the ET1 was sent on the 15th but not received at the ETS due to a technical breakdown. I know that the ETS uses a provider to have the ET1 transferred "down the wire", perhaps it's not compatible with my Email provider (BT/Yahoo); he says hopefully.

 

Mrs S has been busy today and there are at least two Breaches of Contract. The respondent is of the opinion that there aren't any but he must know there is, that is why, in my not so humble opinion, he is pushing for time - out, quite legally of course. At the moment, Mrs S is trawling through information regarding her grievance and the lack of disciplinary action in the hope that we can find a way to say that the resignation date should be later.

 

Joe

[papasmurf1cx]

Hey Joe

 

Don't know if this will do any good http://www.emplaw.co.uk/content/index?startpage=data/0405171.htm

 

The Overriding principles that courts make their decisions on............... note that one is "fairness" to both parties. bearing in mind the disparity between Mrs Soap and the employer and even if there is substance to their claim of being out of time you may be able to argue about it being unfair to Mrs Soap for the case to be struck out?

 

Perhaps some of the legal eagles on here can give a view on this? Even if they give a contrarian view if you have nothing left to argue with it is worth a shot.

 

Good Luck.

[joesoap]

Hey Joe

 

Don't know if this will do any good http://www.emplaw.co.uk/content/index?startpage=data/0405171.htm

 

The Overriding principles that courts make their decisions on............... note that one is "fairness" to both parties. bearing in mind the disparity between Mrs Soap and the employer and even if there is substance to their claim of being out of time you may be able to argue about it being unfair to Mrs Soap for the case to be struck out?

 

Perhaps some of the legal eagles on here can give a view on this? Even if they give a contrarian view if you have nothing left to argue with it is worth a shot.

 

Good Luck.

 

Thanks for that papasmurf. I'm only looking at pioitives at the moment until someone comes along and says "you've got no chance, forget about it". As a life long supporter (sufferer) of Newcastle United, I never give up on anything. This is a doddle compared to watching NUFC, although not this season so far.

[joesoap]

Had my head buried in stuff today. Actually managed to find proof that the claim form was prepared and worked on, 15/7. I'm sure the respondent will say that it's not proof of sending but I hope he doesn't take us for a fool. I have a trick or two up my sleeve but hope I don't have to use them. I was of the understanding the a PHR was rather informal. However, the solicitor is spouting off about having a "bundle of docs for the witness box". I know we've all to have bundles, but the witness box? Not having been in a courtroom for anything (I'm a good - boy), how oes one address an employment judge; your honour, sir (or ma'am)?