Advice on Filling in ET1 form please

[SarEl]

Well I generally wouldn't believe a word ACAS says, but on such flimsy advice it's hard to fault it.

 

You cannot get a SAR on someone else. The case has to be heard pruely on the basis of your fathers suitability for the post. There is no %-age match that says that a different post is a suitable alternative, so it comes down to which side of the ragument the tribunal accept. You s eem to have managed to fill in the section reasonably and I wouldn't worry too much - the ET1 isn't your "final word" and you can amend it if necessary - but what really matters is your argument at tribunal (assuming that it isn't settled, one way or the other, first).

 

For what it is worth, the weakness in your argument is the 25%. As I said earlier - it has nothing to do with whether the new guy can do the job or not, or whether anyone could. The employer is entitled to darw up whatever job description / specification they wish. A suitable alternative vacancy must have equal or similar pay, conditions and status - but also skills and experience (from the employers side). The employer is going to trying to prove that your father had none of the 25% of the skills, could not gain then (or gain them in a reasonable timescale) and that he was therefore unable to do the job to their requirements. That is what you must focus on disproving - not trying to argue that they got someone useless in!

[SarEl]

No. But I am confused. How does an employment agency end up in the mix? The company should firstly have matched your father to any possible suitable alternative vacancies, so to insist on him applying through the normal procedure they must first have determined that this job wasn't a suitable alterative vacancy. Did he ask about this? And if so, on what basis did they tell him that it wasn't a suitable alternative vacancy?

[SarEl]

I picked up a bit in the later information which may be relvant, although unfortunately, not necessarily in your favour. Am I correct in thinking that the new post for which your father was required to apply was at a higher grade and pay? In which case this would undermine his position in any claim. The entitlement in a redundancy situation is to a "suitable alternative position", and that means that the pay and conditions must be braodly similar to, or the same as, the existing job. An employee cannot be required to consider a post which has lesser pay and conditions than the one that they have been made redundant from - it would not be a suitable alternative. Conversely, if the pay and conditions are higher, then the employer is entitled to say that it is not a suitable alternative (or indeed the employee can refuse it - I have known employees to say that they don't want the extra responsibility or targets or whatever, and refuse a better job!), and so there is no automatic right to the job. This is no doubt the stance that the employer has taken. As a result, it is entirely possible that they could legitimately argue that they were prepared to consider your father for the higher paid job, which was not a suitable altrenative in the way that the law specifies; but that offering an interview in no way confirmed that he was appointable to the role. After all, lots of people get interviews for jobs, but being given the interview isn't a test of whether you can do the job - it is a test of how good an application form you can fill in!

 

So if the role that your father applied for was paid at a higher grade, then it is considerably less clear cut that he has a claim to this role being considered suitable.

 

Obviously I can't say whether this also applies to the second post you mention as there aren't any details of that post.

[SarEl]

The ET1 is almost certain to be "accepted" - don't place too much emphasis on this. It simply means the tribunal considers it has jurisdiction (the claim is one they can handle, and made within time). It is little more than a receipt, and doesn't imply that there is even a case. People misunderstand what "accepted" means and think that it means they have a case, and it doesn't imply any such thing. So don't get hung up on the strneghth of your argument on the ET1 - you argument is for the tribunal and will require honing with documents and disclosures.

 

If the pay difference is very little then it certainly does improve your case. You would be able to require disclosure of the pay grade as part of the proceedings (it isn't something you need now to make the claim). But as I said (and your solicitors are wrong), the "new guy" is a red herring. There is no way that disclosure could require the release of perosnal information about somebody else, and it has no relevance anyway. The fact that he may or may not be better at the job doesn't matter, because the case is whether the redundancy was fair - not whether his appointment was. I often end up telling people this - you have to retain an objective mind when dealing with a case, because subjectivity leads you to believe things that you simply cannot evidence. So KNOWING that this was unfair is utterly and entirely irrelevant - the only thing that matters is PROVING it!!! And I have no idea what the quote of £7k was for in terms of obtaining this information because (a) they should know that they can't have someone elses perosnal information and (b) it doesn't cost £7k to request disclosure - it costs nothing!

 

But you need to concentrate, as I said before, on the case as to why this was a suitable alternative vacancy (in your view) - not who got it or how good they are at it. It is all about process, not personalities. Stay objective and challenge your own assumptions and thinking. Work out what the employer is going to claim and then find what evidence you need to show it isn't the case. That is the way to win tribunals. Remember the one thing that people most often forget. It doesn't matter a damn whether what happened was unfair - the only thing that matters was whether it was UNFAIR IN LAW. The two things are very different - and only the latter wins tribunals.

[SarEl]

Excellent - many thanks for your help - it is very much appreciated.

 

We will send in the ET1 and go from there.

 

The quote for £7k was for filling in ET1 (£465) then legal costs on top, including counsel fees of ~£3k so from beginning to end of the tribunal...

 

You have basically confirmed what I was thinking RE the solictiors he used - seems they dont know what they are quite on about

 

Gosh - their counsel come cheap!!!

 

Seriously though, this is one of my arguments with no-win no-fee and insurance type claims. Too many of them are "spreading the dosh around" to second class representatives. There is absolutely NO need to retain counsel for a claim of this degree of complexity - it is a case which a competently experienced solicitor could do with ease. Basically there is a pretty good guideline - if you (as a relatively "average" person of "average" intelligence) can manage to do it yourself (and ok, you might struggle a bit, but you will manage), then a solicitor can do it with ease. A barrister simply isn't needed for cases like this. With the number of claims made every year, do you seriously think that anyone would ever win if you needed a barrister for each one - there aren't enough barristers to go around! It doesn't need fancy talking, or case law knowledge most of the time - it just needs someone who can explain in clear and simple language what will happen and what to do!

 

I don't generally like quoting "odds" based on web postings because the devil is in the detail, but it strikes me that based on what you have said, and assuming it all to be correct, had you had legal representation, I would have put your chances some little way above 50% at a guess, which is usually around about enough to get the legal representation you need! Based on the same assumption and details, I'd have given you 50 -50 on your own. Which tends to lead me to the conclusion that the solicitor that you talked to doesn't exactly rate their own competance very highly if they don't think they add anything to your case!

[SarEl]

One thousand pounds for ADVICE? You would get written TOP COUNSEL's opinion for £3k! Probably less since it wouldn't take all that long! But I think I see the problem here. I assume that he went for advice but didn't mention that he had legal insurance? Legal insurance battens down the hatches on costs - some of them simply don't like coughing up! And some solicitors, I regret to say, will take any case that they see making them a fat fee - in some cases ones that have no chance of succeeding! Have you tried talking to the insurers directly and asking for a referral to one of the panel of solicitors? This shouldn't have costs a think, and unless you have an unusual policy, they will do it. But if so, don't mention that you have already had advice.

[SarEl]

You can get legal representation at any time if they will take you - some won't accept a case already started if it is approaching a court date. But I'd suggest trying for a solicitor who knows what they are doing! I am also a bit surprised by the LEI being judged on advice given BEFORE a termination. Most wouldn't pay for advice before the termination, only after - and certainly nobody could give legal advice about what MIGHT be the case, before it has actually happened.