Jump to content

 

BankFodder BankFodder


  • Tweets

  • Posts

    • You're like, super helpful and unhelpful at the same time lol.   What do I search for, I searched form 4, and nothing, I searched claiming compensation and nothing about this.   I can't find the top squares logo.   Can you post a link or tell me what to search.   Sorry if I'm slow.
    • use our custom google search box  click our top squares logo it should appear on that page   dx
    • Apologies, I haven't used a forum for years!!   I defo wish to keep the 2 issues separate, sorry!   My only issue I need help with is the increased compo for marstons - if possible.   I don't know anything about claiming compo etc. (I only recently found out one of the NHS biggest costs are NDA payouts)   I don't know what form 4 is; so far, they've offered £250 and I haven't accepted or denied it.   So yeah, can you forward me to some more info?   Also, usually I'm good at google etc. but I can't find many stories on this stuff, regarding PCN/TFL etc.   Thanks again!
    • ok things are getting clearer...   I've merged 2 of your posts for clarity and removed the swearing, (behave please) I've also taken down the two images you posted should you wish to post things up please use PDF so we can zoom easily and don't forget to redect them read upload carefully.   I think you need to continue to keep the two thing sep. those being increased compo for marstons- if possible ( if you are raising a form 4? complaint through the court - it might be better you don't? - they are very hard to justify and can be costly - so the fact it might not be moving forward could be a good thing, but listen to others here too) and the issue of the PCN wasn't justified - which you need to further expand on please.   the more info you post up the better please but please use multipage PDF files only and carefully redact them    
    • Thanks for trying btw! It's kinda in 2 parts.   1 is that the PCN wasn't justified in the first place and I wasn't aware it had escalated. I received the initial fine from TFL which I challenged and heard nothing back from (for 5 months). Then another letter from a separate PCN which made me email TFL to inquire what was going on but again, heard nothing back.   (BTW I can see how confusing this is so thanks again for trying)   So, I had no idea my car was at the risk of being taken - that's the first part.   No 2. is:   I got a phone call saying my car was on the back of a truck round the corner from mine (they hadn't left any notices or anything, and the car was parked directly outside my house). My friend said they were attaching the straps and securing it to the van (so I think they got it on the back of the van and moved it before securing it).   When I ran round the corner I saw the EA's van. I went upto it and asked what was going on. He was rude and told me to go away. Then after I kept knocking he got out the van and was aggressive and refused to ID himself or tell me why he had my car.   He shouted at me, was rude and unprofessional, he then left with my car. I complained to Marstons and asked for the bodycam footage.   They gave me the footage but it was clearly edited and cut short (because in the beginning of the footage he was the most aggressive).   They then told me he wasn't required to have the camera turned on when he's in the van, only when he's 'actively pursuing a warrant' and I was only allowed the footage I was in. (which is 2 different things) So I asked them to clarify which is true.   Anyway, I reviewed the footage and sent in my complaint (talking about what happened in the footage) They replied and said they watched the footage and disagreed with everything I said.   So I wrote a more in depth response with the CIVEA code to reference + the TFL EA guide etc.    Then they asked for more time, called me and finally apologised and admitted he had acted untoward and was in the wrong.   They then offered me the goodwill payment.   This has taken up weeks of my time, caused me serious trauma and PTSD and even after I complained WITH video evidence, they still initially denied it which means they officially lied, on record, while representing TFL.   I told TFL what was happening they said I had to continue with Marstons etc.   £250 goodwill isn't enough, the car cost £800 to get out, the suspension is messed up and I'd like to claim compensation for everything.   I don't know if that makes me sound like i'm money grabbing or whatever but they shouldn't be allowed to get away with it.   The police had to come before they could call an ambulance cause I was having a panic attack and it was a HORRIBLE experience.    So any help would be great please    I have the whole file from Resolver in a ZIP file but it's a lot of writing and I think you've read enough of my writing to last a life time!   I did a statutory declaration of OOT, got it signed by the court etc. but it was rejected.   I then tried to take them to court but it cost £250 I think which I don't have. You can get it for free if your low income but they wanted bank statements that I couldn't get. They're waiting for me to reply with documents to get a free court date.    did you receive any of the pcn's - was that why you appealed? - Yes, sorry!   unless it's trying secure a greater level of compo from marstons? - Yes, sorry!   For the record I just saw this pop up, read it and now feel much less guilty about my enquiry!
  • Our picks

et62

One year period of continuous employment...yes or no ?

style="text-align:center;"> Please note that this topic has not had any new posts for the last 3326 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

I commenced full time employment on 1 March 2010 with a large scale PLC and was dismissed on 13 January 2011 due to the fact that my services were no longer required at my designated place of work. I was serving as a consultant on behalf of my employer at a client's facility situated 5 miles away from my permanent place of residence and the client had decided to cease engagement of an outsourced consultant ( ie myself) and directly employ a full time replacement.

 

I was due a notice period of one month. However, my employer wished to re deploy me at a separate facility also situated near my home town , but only for a temporary period and thus my notice period was extended to February 28 2011, and as such I presume that Feb 28 (ie tomorrow) is my effective date of termination. My employer stated that they may find me alternative employment during this extended notice period but no such enquiries or discussions were held. I do not wish to go into detail but I am of the opinion that I may in fact have been "unfairly dismissed".

 

I am , however, aware that generally speaking I need to have a minimum of one years service in order to submit an ET claim for unfair dismissal. Is the time period from Monday 1 March 2010 through to Monday 28 February 2011 classified as exactly one years service ? I was continuously employed throughout this period.

 

I am hopeful that I have just (but only just !) attained exactly one year's service. Do forum members agree ?

Share this post


Link to post
Share on other sites

Hello again et. In case it helps people trying to help you, is this linked with your question about your training contract?

 

My best, HB


Illegitimi non carborundum

 

 

 

Share this post


Link to post
Share on other sites

I don't know the answer, but tend to think like you that it could be !! I am sure this will be an interesting thread among the lawyers here. I want to know the answer too!!

Share this post


Link to post
Share on other sites

Best thing to do is to submit an Et1 Claim form before the three month period, from the date of dismissal.[regardless]

 

The tribunal will then inform you if your claim is allowed or rejected.

 

They will also give you reasons for rejecting the claim if the claim is rejected.

 

Good luck

Share this post


Link to post
Share on other sites
Hello again et. In case it helps people trying to help you, is this linked with your question about your training contract?

 

My best, HB

 

Regardless, looks like a fairly intriguing query and look forward to replies from learned forum members.

Edited by et3
clarification

Share this post


Link to post
Share on other sites

Aye, if ya don't try, ya won't know. You're hardly going to be accused of being vexacious just on the qualifying length of service being slightly contentious, I'd have thought.

Providing your UD claim isn't a load of pollocks too.

Share this post


Link to post
Share on other sites

Isn't the fish spelled pollack, Pulpo? Good afternoon btw.

 

My best, HB


Illegitimi non carborundum

 

 

 

Share this post


Link to post
Share on other sites

Having looked at deadlines for submission of an ET1 claim form to the Tribunal there may be a parallel with the posted query.

 

A claim must be submitted within 3 months. But that is defined as three months less one day. Surely then one years service must be one year less one day. If for example one was a nurse and your first day of employment was January 1 and their effective date of terimination was December 31st then surely that time period represents one year ??? Along similar lines then I would hope that in law the period from March 1 to Feb 28 also represents one year ( excluding leap years of course !) .

Share this post


Link to post
Share on other sites
Isn't the fish spelled pollack, Pulpo? Good afternoon btw.

 

My best, HB

Good afternoon, HB. You're correct.

That wasn't the word I was alluding to, a letter was changed for raisins of decency.

Share this post


Link to post
Share on other sites

And if you shop in S**nsburys, it's a load of Colins, apparently.

Share this post


Link to post
Share on other sites
Having looked at deadlines for submission of an ET1 claim form to the Tribunal there may be a parallel with the posted query.

 

A claim must be submitted within 3 months. But that is defined as three months less one day. Surely then one years service must be one year less one day. If for example one was a nurse and your first day of employment was January 1 and their effective date of terimination was December 31st then surely that time period represents one year ??? Along similar lines then I would hope that in law the period from March 1 to Feb 28 also represents one year ( excluding leap years of course !) .

 

No. Afraid not. Because it isn't a year any way - it is 52 weeks. And there is no "less a day". But since, by my adding, 52 weks ended on 27thth February, I make it one day over and therefore within time.


--------------------------------------------------------------------------------------------------------------------------------------------------------------------

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.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Share this post


Link to post
Share on other sites
No. Afraid not. Because it isn't a year any way - it is 52 weeks. And there is no "less a day". But since, by my adding, 52 weks ended on 27thth February, I make it one day over and therefore within time.

 

Thanks SarEl......hope you don't mind me asking, but how confident are you that the legal definition of one years service in respect of the qualifying period for u/f dismissal is 52 weeks ?

 

According to your calcs 52 weeks will end on 27 February 2011....but that is a Sunday.....but as 28 February is last day can I therefore presume that I will have achieved the "one year" qualifying period based on a start date of Monday 1 March 2010.

Share this post


Link to post
Share on other sites
Thanks SarEl......hope you don't mind me asking, but how confident are you that the legal definition of one years service in respect of the qualifying period for u/f dismissal is 52 weeks ? 5 zillion %. This is first year law school stuff. It is actually 52 weeks or 51 weeks plus one weeks statutory notice if no notice is given. For now. Soon to be two years (104 weeks) again!

 

According to your calcs 52 weeks will end on 27 February 2011....but that is a Sunday.....but as 28 February is last day can I therefore presume that I will have achieved the "one year" qualifying period based on a start date of Monday 1 March 2010. Quite - but weeks contain Sundays! Not everyone works Monday - Friday.

 

This of course only means that you are able to make a claim - not that you will win one.


--------------------------------------------------------------------------------------------------------------------------------------------------------------------

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.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Share this post


Link to post
Share on other sites

I know one thing for sure, the Respondant will try arguing the Applicant doesn't qualify like it's going out of fashion.

Share this post


Link to post
Share on other sites

If the dates (and my maths) are correct - they can't.


--------------------------------------------------------------------------------------------------------------------------------------------------------------------

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.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Share this post


Link to post
Share on other sites
If the dates (and my maths) are correct - they can't.

They'll still try.

Share this post


Link to post
Share on other sites
If for example one was a nurse and your first day of employment was January 1 and their effective date of terimination was December 31st then surely that time period represents one year ???

 

Hi et3. Yes it would appear that the nurse in your example would have the one years service necessary to submit the UD claim. The law makes no reference to 52 weeks and this is certainly not how it is calculated. Allow me to explain and support the above.

 

The legal basis, of an 'ordinary' unfair dismissal claim is that -

 

1) s.94 of the ERA 1996 gives EE's a right not to be unfairly dismissed.

 

2) s.108 says that the right in s.94, ".... does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination."

 

3) s.210 says that," In any provision of this Act which refers to a period of continuous employment expressed in months or years .....a year means a year of twelve calendar months."

 

[in addition, the law is clear that you start counting from your first day of employment up to and including the EDT (we will assume that the EDT is agreed as per your example).]

OK the above sounds simple...... .

 

So how do we calculate this 'year of twelve calendar months'?

 

Well this has received some (Scottish) judicial consideration. In Pacitti Jones' appeal against a claim brought by their ex employee Claire O'Brien.

 

In this case the ER (Pacitti) argued that the EE (O'Brien) did not have the 12 months continuity to bring a UD claim. She started work on the 8th April 2002 and had an EDT of 7th April 2003.

 

The court decided that the above WAS sufficient to count as a 'year of twelve calendar months'.

 

Thus, to me, the law seems clear on this and thus if your facts are comparable to Miss O'Brien then your ER would be unlikely to succeed in an argument that you did not have the 12 months needed to bring a UD claim.

 

Of course the above only relates to your ability to make the claim, it is not a comment on your chances of success if you do!

 

Hope this helps clarify this

 

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]

Share this post


Link to post
Share on other sites
Hi et3. Yes it would appear that the nurse in your example would have the one years service necessary to submit the UD claim. The law makes no reference to 52 weeks and this is certainly not how it is calculated. Allow me to explain and support the above.

 

The legal basis, of an 'ordinary' unfair dismissal claim is that -

 

1) s.94 of the ERA 1996 gives EE's a right not to be unfairly dismissed.

 

2) s.108 says that the right in s.94, ".... does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination."

 

3) s.210 says that," In any provision of this Act which refers to a period of continuous employment expressed in months or years .....a year means a year of twelve calendar months."

 

[in addition, the law is clear that you start counting from your first day of employment up to and including the EDT (we will assume that the EDT is agreed as per your example).]

OK the above sounds simple...... .

 

So how do we calculate this 'year of twelve calendar months'?

 

Well this has received some (Scottish) judicial consideration. In Pacitti Jones' appeal against a claim brought by their ex employee Claire O'Brien.

 

In this case the ER (Pacitti) argued that the EE (O'Brien) did not have the 12 months continuity to bring a UD claim. She started work on the 8th April 2002 and had an EDT of 7th April 2003.

 

The court decided that the above WAS sufficient to count as a 'year of twelve calendar months'.

 

Thus, to me, the law seems clear on this and thus if your facts are comparable to Miss O'Brien then your ER would be unlikely to succeed in an argument that you did not have the 12 months needed to bring a UD claim.

 

Of course the above only relates to your ability to make the claim, it is not a comment on your chances of success if you do!

 

Hope this helps clarify this

 

Che

 

Excellent reply and thank you.

 

I am rather confused how a Barrister such as SarEl could, however, be slightly incorrect in interpreting the law. Anyhow, either way it appears that the period from March 1 through to last day in February ( ie Feb 28) is a year in anyone's book.

 

Epulpo - are you always so negative ????????????????

 

Thanks to you all.

Share this post


Link to post
Share on other sites

From memory, et62 you're a lawyer too, aren't you? But you're still on here asking for advice, which is given freely. At the end of the day, you might deem it wise to doublecheck the advice and pay a fee and this is your choice.

 

Fwiw, Elpulpo has a great sense of humour, if you take the time to read some of his posts, but is probably speaking from bitter personal experience from what I know of him from the forum.

 

My best, HB


Illegitimi non carborundum

 

 

 

Share this post


Link to post
Share on other sites

Noted Honeybee - I was just a bit surprised by the negativity that's all.

Share this post


Link to post
Share on other sites
Noted Honeybee - I was just a bit surprised by the negativity that's all.

 

I wouldn't take it personally, I'm sure that wasn't how it was meant. But Pulpo probably found this out the hard way and we know from the forum the hardball games that the 'other side's' lawyers and employers come to that, can play. I hope you never find out.

 

My best, HB


Illegitimi non carborundum

 

 

 

Share this post


Link to post
Share on other sites

Aye, HB knows me well. I'm not saying the Rspndt will succeed, but they'll try anything they can.

That's not negative, just realistic.

Edited by elpulpo

Share this post


Link to post
Share on other sites
Excellent reply and thank you.

 

I am rather confused how a Barrister such as SarEl could, however, be slightly incorrect in interpreting the law. Anyhow, either way it appears that the period from March 1 through to last day in February ( ie Feb 28) is a year in anyone's book.

 

Epulpo - are you always so negative ????????????????

 

Thanks to you all.

 

Virgin net v. Herbert - the original EAT was, I think 2002/03, and went to the HIgh Court, I think, 2005, established that contractual notice did not count towards the qualifying period but that for the purposes of calculating the one year qualifying period the test was 51 weeks plus a weeks statutory notice = 52 weeks. The claimant actually lost the case because they were attempting to include contractual notice.


--------------------------------------------------------------------------------------------------------------------------------------------------------------------

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.

--------------------------------------------------------------------------------------------------------------------------------------------------------------------

Share this post


Link to post
Share on other sites
I think this is the one

Harper v Virgin Net Ltd [2004] EWCA Civ 271 (10 March 2004)

Virgin Net Ltd v Harper [2003] UKEAT 0111_02_0907 (9 July 2003)

 

Hi JC,

 

Thanks for the links above. I assume this is the case to which you refer Sarel?

 

Virgin net v. Herbert -, established that .. for the purposes of calculating the one year qualifying period the test was 51 weeks plus a weeks statutory notice = 52 weeks.

 

I'm sorry, I have to be blunt. I can't agree with this.

 

For reasons given in my earlier post and this post, I believe that It simply cannot be the legally correct way to calculate the qualifying period for UD.

 

It appears that the above describes the effect of s.97 of the ERA 1996 – not the ratio of the Herbert (hereinafter Harper) case.

 

I see the ratio of the Harper case as being that there is, “.... no right to claim compensation for loss of an opportunity to claim unfair dismissal.” Overturning Raspin v United News Shops. http://www.thompsons.law.co.uk/ltext/l1270002.htm

 

Going back to the original question.

 

It is clear that to be able to claim 'ordinary' UD you need one year's continuous employment. The definition used in the ERA which is the relevant law on this is one year – not 52 weeks.

 

The question asked was - Is 1st March 2010 to an EDT of 28th February 2011 one year of continuous employment for the purposes of claiming UD? - Pacitti says that it is.

 

Unfair Dismissal is a statutory creation, currently regulated by the ERA.. LJ Brooke in the Harper case comments on this -.

 

A statutory right not to be unfairly dismissed ...... is currently set at one year's continuous employment (1996 Act, as amended, s 108(1)).

 

The ERA 1996 uses the words 'not less than one year' and goes on to say a year, '...means a year of twelve calender months.' (Sections 108 and 210 respectively).

 

Pacitti explains that, because you count from the first day of employment up to and including the EDT if you count 8th April 2010 - 8th April 2011 you actually have one year and one day.

 

Hence Lord Reed's comments at para 16 of the Pacitti judgement -

 

.. we consider that the period of twelve calendar months, which began with 8 April 2002, ended with 7 April 2003. When the appellant's employment was effectively terminated on that date, she had therefore been continuously employed for a period of not less than one year

 

I note that all I see for the above after investigation into this; is that the test appears to be consistently applied as one year as per the ERA – not 52 weeks.

 

I really cannot see how any credible argument can be advanced that the measurement of time for calculating the qualifying period for an UD claim is measured in any other way than this; i.e one year which consists of 12 calendar months??

 

Che

Edited by elche
spelling!

...................................................................... [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]

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...