Unfair, Wrongful or Constructive dismissal?

[papasmurf1cx]

Been this route with my wife.... the short answer is that the route for a personal injury action is not impossible but highly improbable given the evidential bar that the judges and lawyers put on it. The lawyers will always in work place problems advise to go the Tribunal route.

 

In Discrimination / victimisation cases compensation is potentially unlimited, albeit that this almost never happens.

 

Don't waste your time on trying to persuade a solicitor to go the PI route it is wasted energy.

[papasmurf1cx]

Seriously... don't waste your time on the PI route, as I said solicitors will refer you to the ET.

 

DL 56 http://www.equalityhumanrights.com/advice-and-guidance/your-rights/using-your-rights/taking-a-claim-to-county-court-england-and-wales/4-statutory-questionnaires/

 

ET 1 http://www.justice.gov.uk/forms/hmcts/employment

 

Just try googling the forms and the info will pop up !

[papasmurf1cx]

If OH are looking at ill health retirement and they can't offer a pension, then they would have to put something forward for you to agree to. Normally these negotiations are done between solicitors. Most cases settle before going into a court hence it is best to have legal advice on your side, so you are not shafted. Can't answer the pension query.

[papasmurf1cx]

The questionnaire is normally sent before submitting an ET1 because it was designed to concentrate the minds of employers to question their actions and address issues. However with time restraints being as they are employers merely ignore them and you will be lucky , actually VVVVVVV lucky if they even bother to answer it. If they do they will deny everything anyway. It is still important to submit it though because the ET Judge will want to see if they did address the issues and will be asking the very same questions.

 

So do both but ensure that ET 1 time limits are complied with.

[papasmurf1cx]

We can but try and help. This is not an easy process and is very stressful. You have to have a determination about you to succeed. You also need to read up on the law and procedure. One can become quite knowledgeable, but the law changes and you can also get out of date quite quickly too. Solicitors do this for their own living so they are never going to be cheap. The opposition solicitors will employ every trick in the book to wear you down.

 

The point I am trying to get over to you is that you could get even sicker as the process can contribute to this and you may wish you never started, so go forward with your eyes open or reconsider your position for the good of your health.

[papasmurf1cx]

lindy... it's a matter for you of course, but if you are intent in taking them to a ET I would say do not resign. That just puts another layer o on to the pile to prove, why would you want to do that? If your doctors are telling you that tghe place is toxic and you should not go back there, then don't just stay off sick. Ask yourself this question... how will you feel about just walking away from the company when you feel so passionate about the way they have treated you? and how will you feel if you fight them and lose? We had this and our answer was that it would forever nag us that we did not fight and take it to a natural conclusion and if that was that we lost then so be it. Walking away and making things more difficult to prove did not make sense to us.

 

Finally if they dismiss you whilst you are still sick and they made you sick in the first place and you have grieved the matter could be considered an act of victimisation. It would be a bad move for them to do this, they would probably stall and stall and hope that having no money to pay your bills will force you to do something to force the issue...like walk away and try and claim CD.

 

I would say though that you should actually consider what amount of compensation you are likely to obtain as being quite relevant too. The larger the sum the better you should fight, the lower amount should make you wonder whether it is worth the hassle and further torment and illness.

[papasmurf1cx]

Maximus........ you might want to look at the cases mentioned in this link http://www.askemploymentlaw.org.uk/stress_at_work_psychiatric_injury.htm

 

Judges don't like these cases that are 'employment' cases they will find a way of dismissing it and unless you have someone that can argue case law you may find yourself out of pocket again but this time with the other sides legal fees to pay too. Beware.

 

Sometimes for recovery you have to let things go.

[papasmurf1cx]

Good call Maximus...... Never an easy decision but having been through this a couple of times now, one HAS to end these disputes at some point and weigh up the pros and cons. Using the balance of probabilities was inspired and knowing you are in the right but let down surely eases the conscience that you did ALL you could to fight injustice.

 

This will live with you forever but don't let it eat both of you away, try and see the positives in the experience (which may be a bit hard right now). Good luck and hope good health revisits you both.

[papasmurf1cx]

I am not suggesting to anyone to give up. The whole point I was alluding to was the journey that we all have been on. Anyone that has got to the point of taking their case to a court or Tribunal will know how tenacious you have to be to overcome the hurdles. Even with a solicitor (a decent one that actually helps rather than hinders the process) it can be very difficult. One is left with the impression that you do all the work in any event and wonder what they are being paid for. Anyway, getting to a conclusion whether one wins or loses one can be proud that you took a stand against an unfair set of circumstances. The triumph is getting to the end of the process and looking back and thinking, I stood for justice and made the defendant (employer) have to eat their words and look me in the eye and lie and perjure themselves. I told the truth.

 

We suffer because of that, it was the hard road but we took it and our integrity is intact. What better outcome can there be than to be true to oneself?

 

Unfortunately, you have to get to that end to say that and many will fall by the wayside and never get there. One's health suffers and the cost can almost be unbearable. I always tell people on the start of their journey that there is no loss of face by not starting it, because by the end we can feel that the cost was too much.

 

Our personal journey started in 2000 when I lost my leg in a RTA. 5 years of battling having sacked one solicitor for incompetence all had its toll on us and at the end the union that backed us did the dirty and made us, forced us, to accept a payment in to court or risk ruin. (We / I still very well, I am not complaining.) A year of calm followed and a discriminatory action by my wife's employer started us down the ET route for her. Her Union discriminated against her by not representing her, it went right to the top. At one stage we had 1 county court action, and 2 ET actions going against employer and union. There were ancillary battles also which I don't need to mention but that all took another 5 years to sort out. They ALL paid out in the end.

 

We are no lovers of unions, as I believe they do not look after the interests of their members especially in relation to discrimination matters and their own action in dealing with employers and discrimination grievances also are discriminatory by not representing the member. That is why I also say where unions have reneged on representing their members then to take them to the ET too. Always get long adjournments though whilst the main event against the employer is settled because you can't get double compensation.... but of course Injury to feeling is payable for ALL discriminatory actions and can be considerable. My wife's union settled in a 5 figure sum NOT to be bothered to take it to trial. We would not settle any cheaper because we were making a point... and it worked because not budging just made their attempts to settle cheaply seem pathetic.... the strength of the evidence always makes lawyers think about the economic reality for their client.

 

What are the positives of abandoning a claim ??? .... well I think it is to do with being true to oneself but also to be settled that you did your best, and if unsuccessful, at least you can draw a line under it. If you are the type of person that HAS to fight, your mental state will be far better having fought and lost than never fought at all. Mental status is so important for the rest of your life. That is what my wife said to me before we embarked on her journey. We won all her battles except one we still have to get her confidence and health back to what it was and I am not sure at this point in time whether we will win it, but she and I would not have had it any other way because the other way would have eaten us up. It helps that you have a spouse or partner to help you through the process because at least one of you will be able at any time. There weren't many times in the last 12 years where we both depressed at the same time, we certainly have been on a journey!!!

 

Keep up the fight if you still need and have to, it is right to do. Do recognise there is an end time and no case is settled at the very top of what it is worth... we all compromise at the end game. If you have done your best don't ruin the rest of your life with a wasted effort. Rationalise you did your best but lost and try and move on... you did well to get to that point and if you did it on your own then even better, Lawyers and barristers train for years to still lose cases !!

[papasmurf1cx]

J&W..... try here.... http://www.legislation.gov.uk/ukpga/2010/15/section/57

[papasmurf1cx]

Tell them that you are not interested in settling this matter at this stage. You would only consider remedies as and when they want to settle all matters. Explain that their actions never have indicated a desire to settle the allegations you have made and that as far as you are concerned the ET is the correct place for all matters to be heard and judged upon.

 

The point is that they are sounding you out on how they can cheaply settle matters. Will you jump at it or not, are you desperate or not... it is a game. Don't play their game play yours.

 

The way I read this is that they want to settle but try and put you on the defensive. In the 'endgame' they will always want YOU to set the numbers and they will say 'oh no no no no!!!!' and come back with a ludicrously small number. You are blind because you don't know what a case or aspect of a case is worth. Find out what the ranges are and what COULD be the settlement number. You will never get that but you may get an idea of what you DO want for the matter.

 

Once you have that number in your head you can make judgements as to what you can reasonably achieve ABOVE that number, but have a number which you will not fall below.

 

They are playing you....... play hard to get and jerk them off with further legal bills... for them. The longer it goes on in the ET case the more expensive it gets for them and a trial ...... and preparation for trial is the most expensive area.

 

If they come back to you with some sort of indication that they want to settle the whole matter then you MAY be making progress..... just don't jump at what they deem to give you. They can hurt as much as you and preparing statements and the like, for them, will be most uncomfortable.

 

I always said it... get to ET and outside their control and they hurt like anything.

[papasmurf1cx]

however the DP as i understand it is outside of the ET jurisdiction

 

 

 

Yes that may be the case....... but that does not stop you stating that you feel that it should be settled 'in totality' as it is a cathartic process for you to have these things dealt with together.

 

delay delay and delay in my opinion because they want shot of it and you want shot of it ALL. Keep to your agenda not theirs.

[papasmurf1cx]

Go girl Go !!!!!!!

 

They know you mean business.

[papasmurf1cx]

Lindy ... expect a knock back on the DP issue. They will know that if they don't comply and you complain to the ICO then the worst they will get is a wrap on the knuckles. The ICO will take an age to reply to you expect that to go on for a year !! That was happened to us. You end up working for nowt. The ICO are useless.

[papasmurf1cx]

Not ill advised at all. You have pin pointed exactly the areas where their position is weakest ie lots of managers and big solicitor firm. Point out also that you are litigant in person, the fact that delay is prejudicial to your health and they are using delaying tactic to wear you down. Point out if they have done this before.

[papasmurf1cx]

Partially resolved = partially admitted. This does not absolve their actions. keep pressing on, they will offer to settle in due course, do not give up. Nothing has changed legally, they have to LEGALLY resolve the case and the allegations against them, and the only way to do that is to compensate you for the injuries, injuries to feelings and the losses you have suffered.