Accident at work, now it gets compliacted...

[Onceuponatimeinkent]

I had an accident at work last December, slipping in untreated, icy conditions. I have begun a claim against my employer and they have acknowledged receipt of the claim. My contract ended at the end of December and as the work is seasonal (10 out of 12 months a year) we are given the option to re-apply every January for the role. So from January - March, I am technically unemployed.

 

I received the application forms and letter inviting me back in mid Jan (with a start date in early March), filled it out and returned all the forms ahead of time, after all, a job is a job these days. I am aware that my employer knew about the claim prior to me receiving this application form too...

 

However, I received a telephone call a week ago from my manager asking if I was going through with the claim (I am) as it is causing 'bad feelings' amongst other staff members and my return would be 'tricky' (They had already had my application for at least two weeks by this point).

 

Today I received a letter saying I had not been successful (this was to be my 4th season) due to 'unusually large number of applications' and on this occaison I had not been 'successful' in my application. This strange for a number of reasons. Firstly, my manager told me last week that I was a 'highly valued member of the team' and secondly I have always worked above and beyond the call of duty, unlike some of the other staff members who keep being invited back year after year who do a tiny fraction of what I did.

 

What I'd like to know is this: Do I have any grounds for bringing action against them for initially welcoming me back (for a 4th season don't forget) and then today saying I haven't been successful? Reading between the not so thin lines it is simply because I am bringing a claim against them for negligence.

 

Any advice or guidance will be greatfully received. Ta!

Edited February 22, 2010 by Onceuponatimeinkent

[scousegeezer]

Onceupon,

I am aware that if you are involved in seasonal work and you are employed by the same employer for consecutive seasons, then you are regarded in law as a permanent employee and have all the rights that the rest of us have - in other words they cannot just sack you and say that you have not been employed for more than 12mths therefore employment law does not cover you. I must stress that I dont know how many consecutive seasons it has to be. So this might be a bit tricky to take to a tribunal for unfair dismissal. Especially if you have to go through the selection procedure each time. DO YOU? Do you have to apply and have an interview or do you merely have to write them a letter stating you wish to return the following season. Having said that, the fact that you have a letter in your posession (as I read it) stating that you are being employed for the next season must go in your favour. Someone else with more knowledge than me will be along a little later with better advice.

 

Cheers - Scousegeezer.

[Onceuponatimeinkent]

Hi scousegeezer, thanks for your reply.

 

"I am aware that if you are involved in seasonal work and you are employed by the same employer for consecutive seasons, then you are regarded in law as a permanent employee and have all the rights that the rest of us have - in other words they cannot just sack you and say that you have not been employed for more than 12mths therefore employment law does not cover you."

 

The contract ended Dec 28th 2009, I received my final pay at the end of January and them my P45 soon after, technically then I'm not an employee... Then Jan comes around and out goes the letter asking if I want to return.

 

"Do you have to apply and have an interview or do you merely have to write them a letter stating you wish to return the following season."

 

All I have to do is complete a form with personal details, name, address, bank details, next of kin etc and thats it. There is no interview, its just a standard procedure that happens every year. By completeing the form it indicates I'll be returning.

 

"Having said that, the fact that you have a letter in your posession (as I read it) stating that you are being employed for the next season must go in your favour."

 

The letter merely states that if I would like to return, complete the forms. It also gives details of the hourly rates and benefits. It also says that if I am re-joining please confirm in writing by a certain date, which I did. It ends with 'we look forward to welcoming you back to 'the establishment' for 2010. And then all of a sudden I've 'not been successful in my application'

 

At the end of the letter there is even a handwritten note saying 'p.s. hope your arm is getting better', which was er... nice.

 

Hmmm.

[Bigredbus]

A 'seasonal contract' is a fixed-term contract. In law, when a fixed-term contract expires and is not renewed, it is considered to be a dismissal. Although you only work 10 months out of 12, it is safest to assume that any planned gaps in your employment will not break continuity, especially if they are for a short period in comparison to the overall length of employment.

 

Your fixed-term contracts have been running for three consecutive years, and this incoming one would have been your fourth fixed-term contract. Any dismissal that are made solely on the grounds of avoiding a fixed-term employee acquiring permanent status are likely to be unfair and in breach of the regulations. A decision not to renew a fixed-term contract is expressly regarded in law as a dismissal and therefore the usual remedies apply.

 

Either contact an employment lawyer/solicitor, ACAS and/or your nearest CAB.

[Onceuponatimeinkent]

Bigredbus, thank you for your reply. I spoke to the CAB yesterday and have gained some valuable information.

 

Here's a few thoughts I've had. Firstly, if I were a full time employee on a permanent contract and made an injury claim, it would be illegal for my employer to sack me. Now, looking at the 'Fixed Term Employees (Less Favourable Treatment) Regulations', it would appear that as a fixed-term employee I have the right not to be treated less favourably than the comparable permanent employee merely because I am fixed-term, unless the different treatment can be objectively justified.

 

So, if they have not re-employed me because I am making a claim against them does that count as 'less favourable treatment'?

 

Secondly, they haven't follwed the Dismissal and Disciplinary Procedures outlined in the Employment Act 2002, whereby they would need to do the following:

Step 1: statement of grounds for action and invitation to meeting

 

1 (1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting

 

2 (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless—

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal

 

3 (1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision.

 

Basically they have already taken the decision not to take me back without any meetings or allow me to appeal, they simply sent me a letter saying I haven't been successful in my application.

 

Thirdly, if they have taken the a decision not to re-employ me because I am claiming against them, what message does that send out to other staff who might find themselves in a similar situation, i.e. making a claim for compensation due to injury at work? It tells them that to make a claim will affect your work situation, thats what!

[Bigredbus]

Now that you found out the rights you are entitled to put forward, you can draft a letter and inform them as per your findings...

[honeybee13]

Hi there onceupon. I wouldn't want to comment on most of what you're asking [my own lack of knowledge], but you seem to have found some good nuggets and I hope they help.

 

I would agree with you about the less favourable treatment, if the accident is the reason they haven't re-employed you. As you say, a full-timer couldn't be penalised for having or reporting an accident.

 

I see Bigredbus is viewing, so hopefully you will have some more answers soon.

Edited February 24, 2010 by honeybee13
word missing.

[Onceuponatimeinkent]

Now that you found out the rights you are entitled to put forward, you can draft a letter and inform them as per your findings...

 

I have sent them a letter detailing my grievance, and I'm hanging onto my recent 'legal finds' should I need to use them if they don't play ball. I've given them the chance to sort things out amicablly and they have 7 days to respond positively before I take it further and press what could be the nuclear button. Lets see what happens!

[Bigredbus]

Excellent...

 

You have two fronts (if I may say) to keep in mind when writing to them...

 

a) Your accident and your employer's liability under the Health and Safety Act.

 

b) Their reason(s) related to refusing to renew your fixed-term contract (and the ignorance of the guidelines to follow...)

 

They should get the message, though, once they read your letter...

 

Keep us updated...

Edited February 24, 2010 by Bigredbus
Addendum

[mariefab]

FYI, the 2002 Act was repealed. Some info. below:

 

Employment Act 2008: Eagerly awaited repeal of the statutory procedures just days away

[Bigredbus]

FYI, the 2002 Act was repealed. Some info. below:

 

Employment Act 2008: Eagerly awaited repeal of the statutory procedures just days away

 

That is exact... I did not read it in the OP post...

 

The general procedure is letter, meeting and appeal, anyway...

[Onceuponatimeinkent]

FYI, the 2002 Act was repealed. Some info. below:

 

Employment Act 2008: Eagerly awaited repeal of the statutory procedures just days away

 

Thanks for that info Mariefab, it's a shame (for me) that happened, but overall I think I have enough grounds without having to use their failiure to abide by the Statutory Procedures as well.

 

A friend of mine who still works there told me today that my manager is actually ******* herself over this. Sounds like I have them on the run... Fingers crossed!

[Bigredbus]

Very well done...

 

Hopefully, they will see sense...

[honeybee13]

That sounds solid, onceupon, and I wish you luck. Please keep us posted.

 

Btw, have you heard back from them, or is it the nuclear button sometime from Monday onwards? Watching this space.....

[Onceuponatimeinkent]

That sounds solid, onceupon, and I wish you luck. Please keep us posted.

 

Btw, have you heard back from them, or is it the nuclear button sometime from Monday onwards? Watching this space.....

 

Hi Honeybee,

 

Not had a response from my letter yet, they have until Monday 1st March to reply favourably. If not, then after taking legal advice, I'll begin the formal grievance procedure with a view that if that doesn't work it'll be time to apply to a tribunal. If that happenes then I go after them for unfair dismissal, unfair treatment under the 'Fixed Term Employees (Less Favourable Treatment) Regulations' not to mention other things...

[Whodini666]

Best of luck. You are in very capable hands here.

 

My mind is doing overtime, seasonal work ending in December, slipping on ice. Is your employer Santa? If so I am not sure UK law and procedure applies.

[Onceuponatimeinkent]

Heyho... No post today... tick tock, tick tock...

[honeybee13]

Wow! onceupon. I almost feel sorry for them. They shouldn't have crossed you, should they?

 

Once you've dealt with them, I hope you'll stay around as a cagger and maybe help some other people.

 

I'll expect to hear an explosion from ?Kent direction on Monday and will know you've pressed the red button. Have a good weekend.

[Onceuponatimeinkent]

One day to go as I have had no reply as of yet. Oh. I think I've found something else I can mention at a tribunal too... Hmmm, they shouldn't have made me angry, they won't like me when I'm angry.... ;-)

[honeybee13]

Onceupon, I wish you the very best for tomorrow and the nuclear button. If I haven't said already, I believe in 'Don't get mad, get even'. Go for it and keep us posted please.

 

My best.

[Onceuponatimeinkent]

Onceupon, I wish you the very best for tomorrow and the nuclear button. If I haven't said already, I believe in 'Don't get mad, get even'. Go for it and keep us posted please.

 

My best.

 

I sure will keep you all posted... I am less then hopeful that I'll receive a reply. If only they had taken a different course of action (i.e. not been so stupid and simply let me come back to work), ALL of this could have been avoided... tick tock... tick tock...

[Bigredbus]

Well... you represent a double 'hazard' for them...

 

a) your accident at work... which they have to deal with... and,

 

b) at the end of the forthcoming contract (fourth fixed-term), your contract will be deemed to be a contract of undefinite duration...

[Onceuponatimeinkent]

Miracles do actually happen, for this morning the post arrived at 7.45am instead of the usual 2pm. However, thats where the miracles end as there was no letter from my previous employers. Seeing as today was the end of the 7 day deadline I gave them, I now have to set the wheels in motion and head down the road into unchartered territory...

[Bigredbus]

Remember that many 'caggers' are right behind you on that road!

 

[honeybee13]

Hello onceupon. I'm rooting for you too, please post any problems we can help with.

 

My best, HB