Unfair Dismissal? ***WON***

[clemma]

I think you need to consider what outcome you wish to achieve Clemma.

 

Is it reinstatement for your OH, in which case they could trump up further allegations 6 months down the line, or is it financial remuneration? If the latter, then you could consider a compromise agreement.

 

If you do proceed to tribunal, then I would ensure that your OH keeps a detailed record of all of the jobs that he is applying for, to demonstrate that he is actively seeking employment.

 

As regards the appeal, I personally consider it wise to go through the process, even though the outcome may seem somewhat inevitable. If your OH does not want to attend, then I would submit a written appeal, as you seem to be inclined to do.

 

The OH has been actively seeking work and has been offered a job today, so even though he is seeking financial compensation it is NOT so he doesn't have to work. Also, as he now has a job, re-instatement would not be an option (he was offered the job about 5 mins ago:)). He just wants what is rightly his, even if that is just the notice pay. The letter written is for the GM, as ACAS advised submitting it to him. They have been in contact with the GM and advised him that the OH wishes for this to be settled out of court (hence the reason he was advised to state that he did not wish to be re-instated).

[clemma]

Actually, for reasons why re-instatement would not be an option, can he just simply put he has been offered a new job which offers better pay?

[WelshMam2009]

Actually, for reasons why re-instatement would not be an option, can he just simply put he has been offered a new job which offers better pay?

 

I think you say loss of trust and confidence in the Employer. I wouldn't mention the new job.

[WelshMam2009]

The OH has been actively seeking work and has been offered a job today, so even though he is seeking financial compensation it is NOT so he doesn't have to work. Also, as he now has a job, re-instatement would not be an option (he was offered the job about 5 mins ago:)). He just wants what is rightly his, even if that is just the notice pay. The letter written is for the GM, as ACAS advised submitting it to him. They have been in contact with the GM and advised him that the OH wishes for this to be settled out of court (hence the reason he was advised to state that he did not wish to be re-instated).

 

Then a compromise agreement is probably the way to go with some financial remuneration and a reference. The latter should state that the employment was mutually terminated.

[clemma]

I'm confused now....

 

Do I put

 

Reasons why re-instatement would not be an option

 

· A loss of trust and confidence in management and the company

· I have been offered a new job, starting 4th March, which offers better pay.

 

or just

 

Reasons why re-instatement would not be an option

 

· A loss of trust and confidence in management and the company

[clemma]

Then a compromise agreement is probably the way to go with some financial remuneration and a reference. The latter should state that the employment was mutually terminated.

 

That's the way we'll go then. We'll see this solicitor tomorrow, then go from there. Thank you.

[elpulpo]

Well yeh, if he's got another job then all's well and good. Of course, any ET award isn't going to be substantial, as he's mitigated his loss (presuming the new job goes OK, fingers crossed), but he can still go after the notice pay etc.

[elpulpo]

I'm confused now....

 

Do I put

 

Reasons why re-instatement would not be an option

 

· A loss of trust and confidence in management and the company

· I have been offered a new job, starting 4th March, which offers better pay.

 

or just

 

Reasons why re-instatement would not be an option

 

· A loss of trust and confidence in management and the company

Just that he's found new employment.

[clemma]

Well yeh, if he's got another job then all's well and good. Of course, any ET award isn't going to be substantial, as he's mitigated his loss (presuming the new job goes OK, fingers crossed), but he can still go after the notice pay etc.

 

As I thought BUT no matter how little the OH gets awarded, they will still be out of pocket should they choose to allow this to go to an ET (after all, they need to employ solicitors etc.)

[clemma]

Just that he's found new employment.

 

Thanks

[elpulpo]

If he's got the new job, and all you're claiming for is the outstanding pay etc, then I'd have thought they'd settle rather than start accruing a legal bill

[WelshMam2009]

I would put the latter...just loss of trust and confidence.

 

Your OH has been extremely fortunate to secure a job so quickly. I would be pushing for compensation for "loss of office" somewhere in the region of 3 months salary if I were you, or maybe even longer, if long length of service.

 

Remember, they have already admitted that there was a procedural error in their disciplinary process. I tend to disagree with some of the earlier comments insofar as, being a large organisation, a tribunal would expect them to get this right.

[clemma]

Doesn't loss of office just apply to directors or senior management though? The OH was neither.

[WelshMam2009]

Doesn't loss of office just apply to directors or senior management though? The OH was neither.

 

My understanding is that you use this expression, regardless of your position. This then gives you tax relief on any compensation awarded, up to 30k I believe.

 

COMPENSATION FOR LOSS OF OFFICE

Compensation for loss of office is a lump sum of compensation a company pays to an employee whose contract has been ended.

 

If you're seeing a solicitor tomorrow then run it past him Clemma. He should be able to advise you.

[clemma]

Will do, thank you.

[MONX]

Congratulations for your OH getting work.

 

You must be so relieved (claim against ex employer not withstanding), just knowing that you will have a regular wage coming in will be a blessing.

 

As far as the claim against your employer is concerned, in my limited knowledge of employment law etc, i guess a compromise agreement would be the way to go, however this is an agreement which means both parties have to be in agreement, do you think the OH's employer will be open to this?

[clemma]

*shrug*. I've absolutely no idea. It would depend on where they thought they stood I suppose and just how strong a case we have. Hopefully the solicitor we see tomorrow will be of more help.

 

And yes, the relief knowing he now has a job is phenomenal. I go on maternity leave at the end of April, so knowing we will still have some money coming in has took a huge strain off me.

[clemma]

So we went to see a different solicitor today and she was SO much better. We were in there over an hour, she listened to everything etc. She is now looking at all the paperwork we have given her and she will write to us within a week telling us what we can do. She agrees there are many, many errors She was also not concerned that the OH did not attend the appeal as he had good reason.

 

The letter I was going to send to the GM is on standby for now. I am not going to forward it to him until we have heard back from the solicitor. Oh, happy days.

[papasmurf1cx]

OH happy days indeed. But please be aware that you may have tough times ahead, they never give in easily. You could actually be in the ET on the morning of the trial and they will want to offer a settlement. It is a battle of attrition.

[WelshMam2009]

So we went to see a different solicitor today and she was SO much better. We were in there over an hour, she listened to everything etc. She is now looking at all the paperwork we have given her and she will write to us within a week telling us what we can do. She agrees there are many, many errors She was also not concerned that the OH did not attend the appeal as he had good reason.

 

The letter I was going to send to the GM is on standby for now. I am not going to forward it to him until we have heard back from the solicitor. Oh, happy days.

 

So pleased for you Clemma! However, as PapaSmurf said, this is actually the beginning of a potentially long, long process, which is why I mooted the idea of a compromise agreement.

 

I personally think the Employer would be rather naive to resist such a suggestion although, it may ultimately boil down to the personalities involved. If you think about this in the cold light of day, the company has already admitted a procedural error, which is what tribunals look for, and to fight the case would cost them dearly in legal expenses. Hence, to compensate your OH with a few months salary is technically a win-win proposal.

 

The reason I suggested playing your cards close to your chest about the job offer before is because your financial loss will be fairly minimal. This normally affects the amount awarded by the tribunal. Hence, the Employer in this case may well take a chance on your OH not proceeding, because there is little to gain.

 

Anyway, best of luck with this. As a Mother, I know how quickly children grow up so please ensure you enjoy every moment of your pregnancy and pending birth!

[clemma]

Ok, so I haven't updated this in a while, but there hasn't been much to tell until now.

 

After seeing a solicitor and getting their very detailed advice (30 pages...) and then using this to try pre-conciliation through ACAS, we have had no choice but to submit the ET1. The OH gave a figure to ACAS that he was willing to settle for, which was rejected by the GM. He countered the offer with a paltry sum (less than 2 weeks wages) and said that was as much as he was willing to offer. Now, the OH is not asking for £1000's, but a fair amount as suggested by the solicitor (as a minimum he could expect from a tribunal).

 

The reason the GM rejected the claim? Well, from the little information I could gleam from ACAS this is why:

a) He did not attend the appeal - True, and in hindsight maybe he should have done. However, he does have good reasons, with proof, as to why he did not go. This being the refusal of documents (which could and would have exonerated him from the serious allegations that he directly caused damage to the units) and the 2 further allegations brought up in the invitation to appeal letter, with no mention of his actual reason for dismissal.

 

b) There were 12 other units in question and other work performance issues. Excuse me? Well, none of this was brought up at any of the 3 meetings nor is it mentioned in any letter, email or copy of notes that the OH has.

 

c) His dyslexia is not relevant as they were only made aware of it at the meetings. Fair enough BUT you were made aware of it then proceeded to ignore it as a mitigating factor. The OH's dismissal letter clearly states that all mitigating factors were taken into consideration.....that will be why they ignored the OH's (provable) allegations against management too.

 

So, it seems we will be going to court. Wonderful. I wonder if the GM will be silly enough to use these further allegations at the tribunal. You know, those ones that the OH knows nothing about.....

 

Just to add, the OH has no longer got a job. He was only there for a week on a trial, and after that week they finished him (conveniently when someone came back off holiday). So, he made no money from that job and didn't even sign off. Oh well. He has no longer "mitigated his own losses". The jobcentre can show why he was not kept on, so at least he can prove he didn't quit.

Edited May 4, 2011 by clemma

[clemma]

Ok, so another update (if anyone is still following this). The OH's employer had until yesterday to respond to the ET1. The OH phoned the court today and they haven't received anything.....he has to call tomorrow to check again, but if there is still no reply then it will all be passed on to a judge. I am thinking this is even more in the OH's favour. For a huge company to totally disregard these proceedings must be frowned upon by a Judge. Any thoughts anyone?

[honeybee13]

Hello again. I'd say it doesn't look great for them if they haven't replied. Don't be too disappointed though if the deadline is extended by the judge; it's amazing what companies seem to get away with.

 

Keep plugging on.

 

My best, HB

[clemma]

Would the judge extend even if the company have not asked for an extension? Seems a tad unfair. Surely it's their fault they did not respond so I don't understand why a judge would be on their side. Will just have to wait this out and hope he doesn't give them an unasked for extension then.

[honeybee13]

Hi Clemma. Other people here know far more than I do about ETs, I just mentioned that because I've seen it happen on other threads here. Obviously, I'd love them to be out of time.

 

My best, HB