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Advice on Filling in ET1 form please


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Basically - my Dad was put on notice of being made redundant, as the company were combining his and another guys roles, in the end, they got someone external (despite my dad doing 75% of the new job anyway, and the new guy meeting less criteria than my dad).

 

The company seemed to mess around with missing bits off meeting minutes etc, then changing the minutes when asked to include the bits they missed before, and also not getting a copy of the roles and responsibilities of the new job until the day of his interview for it (had to apply externally for it - and he got shortlisted for it, so presumably both the recruitment agency and the company agreed he could do the work)

 

We are in the middle of filling in the ET1 form, but not sure how to structure section 5.2 - we have basically dated each stage that an interview or notice etc takes place, and finished off saying that the new job role is 75% of my dads old role, and hence, he could have filled the post, rather than redundancies being made.....

 

Also - he has been told by his former colleagues that the replacement doesnt actually have a clue on what he is doing, and would definitely meet less criteria than my dad did - is it possible (if it gets to that stage) to get a SAR on what qualifications and criteria the new guy has?

Many Thanks.

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should also add that My dad contacted ACAS who said he had to lodge an appeal - this was heard, and he was still made redundant - so he contacted ACAS again, and they said he needs to lodge for unfair dismissal.

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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!

  • Confused 1

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Thanks for your input - it is much appreciated.

 

From the roles and responsibilities of the new job, the bits that my father didnt do, were basically pretty easy to get training for (sales based items I believe) - he did actually do sales in a job some time ago...

 

My dad applied for the job (as requested, externally), and got through to an interview first with the employment agency, and was then shortlisted and attended an interview with the company - would it be reasonable to argue that he must have been deemed suitable to get chosen for an interview by the company?

Edited by tonyflow
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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?

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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He was basically told that the job would be advertised externally through a recruitment agency, and he was encouraged to apply for this (externally) - his grounds of appeal against redundancy were:

 

The role was suitable employment for me and should be offered. Also if the (other guy made redundant) was interested it should be offered to us both, to be selected by fair criteria, It was a role I was interested in and capable of delivering as it closely mirrored my existing post and also should not be offered out internally or externally if a redundancy situation existed. I also questioned an alternative vacancy which was not offered thereby reducing the redundancy situation (another job was being advertised within the company at the same time, albeit in a different dept - but training to fit in with this would again be minimal).

 

They rejected this (saying that the new role was more than the sum of the 2 being made redundant at a higher grade/pay level, and they were advertising externally to ensure the best applicants), and continued with advertising externally (which they had started before the appeal was heard). Also - the closing date for the application of the job (externally) was a week before the appeal decision was given...

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They rejected this (saying that the new role was more than the sum of the 2 being made redundant

 

Hi Tony,

 

Sorry to hear about your dad's redundancy. I think it sometimes helps to go back to basics, especially in a case such as this where the underlying legal principals are not that complicated.

 

Redundancy is merely a potentially fair reason for dismissing an EE. There is a statutory definition of redundancy contained in s.139(1) ERA 1996. http://www.legislation.gov.uk/ukpga/1996/18/section/139

 

(1)For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—

 

(a)the fact that his employer has ceased or intends to cease

(i)to carry on the business for the purposes of which the employee was employed by him, or

(ii)to carry on that business in the place where the employee was so employed, or

 

(b)the fact that the requirements of that business—

(i)for employees to carry out work of a particular kind, or

(ii)for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

 

have ceased or diminished or are expected to cease or diminish.

 

As you make no mention of the role moving location (geographically), then the ER needs to potentially show that either a(i) applied or more likely b(i) applies.

 

For many years there was much legal debate about the work of a particular kind part of the statute and how it should be defined - a contract test or functional test - but now there is a leading H of L decision on this.

 

In Murray v Foyle Meats Ltd [1999] ICR 827, their lordships described the statutory language as 'simplicity itself' (hence my inclusion above). They proposed a two-stage test to ascertain if a dismissal was attributable to a genuine redundancy situation which is:

 

".... that we are now left with a simple test of fact. (1) Have the employer's business requirements altered in accordance with Section 139, and (2) has this caused the dismissal? If the answer to those questions is positive then there is a redundancy situation." http://www.thompsons.law.co.uk/ltext/l0510005.htm

 

Thus you would need to prove that the need for the business to do the work of a particular kind as previously done by your father had not ceased or diminished or was not expected to cease or diminish.

 

Unfortunately for you there is, "... no suggestion of an objective test of the needs of the business."

 

Thus your claim would (probably) hinge on 2 possibilities of success either:

 

a) You successfully prove that there was no cessation or decrease of work of a particular kind or

b) That the ER acted unreasonably in how they conducted the process.

 

In relation to point B check out the EAT's five principals from Williams v Compair Maxam Ltd (just google it)

 

In relation to point A you need to think carefully about exactly what the old role was - Is there a JD, does the JD reflect what was actually done, what is the JD for the new role, how does the new JD compare with the old one, you say that there is a 25% difference between old and new role - how has this been assessed and by whom, etc -

 

Can you prove that it is more likely than not that there was no actual decrease in the need for the company to do work of a particular kind? - but to a certain extent even this argument could fail if the ER says, 'Ok the new role is the same, but we only need 1 person doing X now whereas before we had 2 - although that would lead to a potential claim based on not using a selection criteria.

 

I hope this of some help.

 

Have you submitted the ET1 already?

Any Union or legal expense insurance that can get you some professional help.

Community Legal Advice can (or used to) give 2 hours of legal advice free (not legal representation) on Employment matters if you qualify - I have seen them help draft ET1's

 

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]

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Che, the work is still being done, the new role is the same title plus one extra word...

Pretty much 2 roles were amalgamated to 1 new post, so the 2 guys were made redundant, and the job not offered to either before being advertised externally.

As my dad got an interview, and then a second one, I can only presume the company thought he could fill the role?

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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.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Is it possible to find out (if the ET1 is accepted) what the pay grade awarded for the new role is - he has been informed it is a difference of ~£700 per annum (by a friend within the company) - as it sounds like his case may rely on this?

Also - the extra responsibilities were to report to the board, which he already did!

 

The thing is - we KNOW the company did the dirty - seems a bit of a joke if they can just say the job was at a higher level/pay (when we know it wasnt), and that gets them off! They have quite a few other tribunals against them at the moment for further unfair dismissal claims (not that it makes a difference, but it is sickening that companies can act like this and get away with it)...

 

The Legal Expense insurance soicitors (I assume based on above) said the chance is around 50/50 of success, so the insurers wont take it on - however, they also said that if they can get documents based on disclosure proving the roles etc the new guy fits are less than my dad, and pay level is similar, then the chances would rocket.... So they seemed to imply that you could request this information - however, this would dhave to be paid for and I think the total they quoted was around £7k - FAR too much for someone out of work to even consider paying (I guess this is the reason why companies get away with it) - however, if we can get similar information by self representation, then it must be worth a go?

 

Also - another thing to add - my dad had to apply for the new role despite asking (and not being given) the roles and responsibilities of it (as they hadnt been drawn up) - in the end, he was given these on the day of his interview (5 minutes before initial interview with agency) The agency couldnt advise Salary range, as they didnt know. When invited for the 2nd interview - the details were sent to his home email address at 6pm the day before the interview - so he spent most of the night looking at these (details of questions and presentations he had to make)

 

Basically throughout the whole affair, he feels the company has been obstructive, and unfair - and knowing that the new role was taken on at not much more than he was paid undermines the reason for it not being suitable...

Edited by tonyflow
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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.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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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 :)

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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!

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Funnily enough - when it all happened, my dad went to see the solicitors, and they agreed he had a strong case, when he was made redundant, they agreed and said again he had a strong case, then all of a sudden they back tracked, said 50/50 which meant LEI wouldnt cover it - had they have said 50/50 from the start, my dad wouldnt have spent the money on their further advice (which alone I believe stands him out of pocket of around £1k....)

I think the solicitor dealing with the case at the time was PQE of 3 or 4 years, so I guess not that experienced) - and the Law Society page listed her areas as IT and Employment, so it could be it was then reviewed by someone higher up who disagreed with her initial findings....

 

My Wife is a solicitor herself (albeit in an entirely different area, so has only knowledge of employment from initial training etc), so we have a few employment books kicking around somewhere, although it sounds as if they wont really be needed, as they will not expect my dad to be quoting case law etc?

Presumably we can now await threats to cover legal costs etc from the other side?

 

I have no doubt I will be back for further questions if the claim "takes off" - but again - thanks for you time so far - it really is invaluable!

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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.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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I think the figure is closer to £800 but there you go.... The LEI have already said no, as solicitors said chances are 50/50 - Problem was that my dad went to the solictors before being made redundant to make sure he was doing everything he should - LEI will only cover AFTER he was made redundant (no idea why however).

 

Presumably once the ET1 is lodged, you cannot then decide to get legal representation (as you have not paid the £465 fee mentioned for being represented) if for example disclosure of documents revealed the job was same salary, and ultimately the same roles?

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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.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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The LEI stance was based on the LEI's interpretation of the issue ( I assume it went out to a panel solicitor and they they said it was 50/50 on the facts given - needs to be 51% to be taken on - I think the LEI solicitors could only get paid up to a set figure by LEI, so I assume they want to be fairly certain of winning to get their money) - it wasnt based on the advise from the solicitor my dad contacted before the redundancy - that was all done off my dad's back (through a local company "specialising" in employment law)...

 

The "local" company have said they can see if they can go on the panel for the LEI - but again - if they are saying 50/50, then it is pretty much not worth applying for it, as it needs to be 51% (they did say that disclosure of documents etc could possibly increase the chances greatly)...

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  • 1 month later...

OK - ET1 was accepted, and now have the ET3 response back - Do I need to wait for ACAS to get in touch, or can I go ahead and request disclosure of all relevant documents now?

The ET3 mentions the dept coming in under budget (despite setting the budget 80k lower, to which the owners brother said he will make it interesting and increase it by 80k) - but they only list external sales, can I request internal revenue from the dept as part of disclosure?

 

Thanks

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OK - ET1 was accepted, and now have the ET3 response back -

 

Hi tony,

 

Thanks for keeping us updated on progress of the claim!

 

Obviously don't include any facts which could identify you - but - could you expand on what the ET3 says please?

 

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]

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Most of it seems to cover who the company are, and how big the group is, and about redundancies in other areas of the group. It then goes on about how budgets were set between the 2 managers for the dept and these budgets were not met (despite the budget not being what the managers set, and also previous redundancies coming out of this budget) and states a few figures, which are only external sales revenue - most of the work was internal, so this isnt even mentioned. They say they refute the claims on all levels on the basis the redundancies were fair (the 2 managers were made redundant and a new role created that pretty much amalgamated the 2 roles and added external sales onto the description) because of the need to restructure the business. It also mentions the fact my dad put in a computer system for time logging and this showed that the managers were not putting in time - which is incorrect as the system was only used when they were fixing things, otherwise they were not logged into it, and being managerial, the amount of time spent on fixing things was relatively low (My dad was working 45 hour + weeks when only employed for 39). They also have a few dates wrong (i.e. when dad was put on gardening leave etc)

 

It also mentions that no other roles could be considered as further redundancies were being contemplated (despite the fact they were advertising for roles).

 

The thing is, my dad could have done the job, he had sales training from a previous job, so had experience of sales. Also - the job was advertised before my dad's redundancy appeal had been completed - which to me doesnt seem right, as it kind of pre-judges the appeal to be rejected?

 

It appears that they are going to use the figures as an argument that the former managers were not running a profitable division - so is it possible to request the current figures to see if it is any more profitable now, and also to request the internal revenue figures from the time, to show the figures in a true light?

 

The annoying thing is, that a local solicitor said the chances are 50/50 - if it was 51%, then there LEI would have payed up - so not sure if it is worth re-trying a solicitor after documents have been disclosed (as this could bump up the chances, and we appreciate having representation seems to be the best way forward)....

 

Also - not that it makes a difference to the case, but the company has employed an in-house solicitor now, as they have so many tribunals currently against them (i guess it works out far cheaper to have someone who deals with it on the payroll than paying fees each time)

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  • 2 weeks later...

Now looking at filling out Schedule of losses - not sure what figures to use for loss of company vehicle, Private fuel allowance, mobile phone and pension? ANy pointers?

Thanks.

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Also - WRT losses - my dad had an unemployment insurance cover, which in the event of him being unemployed, paid a set amount to him each month - does this need to be shown on the schedule of losses (it is something he has pad for himself, sos not sure if it needs to be bought up and taken off from the schedule of losses or not?)

Thanks again

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  • 3 weeks later...

OK - seems as though the company may be willing to settle - ACAS asked for a figure from my dad, which the company turned down as too high - so he has asked for the company to come up with a figure...

They have asked for a CMD, and also after requesting a postponement of the case, now wish to ask it to be listed for 2 days (not really sure why).

 

Have also found out that they should have held individual consultation meetings for redundancy (according to guidelines, and their own redundancy policy) - which they didnt - so I would imagine this could make it automatically unfair (not too sure on this matter though)?

 

Also - they are playing the trick of requesting costs - which i am not sure they can do - as the solicitor is in-house, so as such, they have no costs, so I believe they can only claim (at most) a preparation time order (again - not entirely sure, as they have legal representation, but they arent paying externally for it)?

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