Offered Compromise Agreement - redundancy/unfair dismissal/sex discrimination case

[dmlferguson]

I'm back and it went really really well. Judge was really good and helpful and I asked as many questions as I could whenever I didn't understand something. Feel 100 million times better.

 

I do need a little help with one point.

 

The judge stated that the burden of proof for unfair dismissal was upon the respondent. But the solicitor corrected her stating that the burden of proof was upon the claimant IF the claimant was identifying the true reason for dismissal. Does anyone have the case law for this or any suggestions on HOW I prove this???

[honeybee13]

Hello again. I'm pleased it went well, you seem to have handled it in a good way.

 

Hopefully the guys can give you some pointers.

 

HB

[becky2585]

Are you claiming automatically unfair dismissal? If so then they're correct, but in standard unfair dismissal there isn't a shift in the burden of proof. You only have to prove a dismissal occurred and it then becomes a neutral burden to prove why.

[dmlferguson]

I was made redundant. The redundancy was a sham to get rid of me. I state it was because I exercised my statutory right to apply for flexible working hours.

 

The respondents solicitor stated, and I believe the judge eventually agreed, that because I stated an alternative reason for the dismissal that the burden of proof had been passed over to the claimant to prove this was the real reason for dismissal. She stated case law but I couldn't get either of the names (even after it being repeated).

[Pusillanimous]

There is some recent case law on the EAT recent judgments webpage:

 

http://www.justice.gov.uk/tribunals/employment-appeals/judgments

 

UKEAT/0069/12/JOJ MRS S LOGAN v CELYN HOUSE LTD

 

[extract]

 

SUMMARY

UNFAIR DISMISSAL – Constructive dismissal

 

The Claimant resigned in response to a grievance decision which she found unsatisfactory. The grievance had involved a number of matters, including alleged bullying (which the Employment Tribunal found was a figment of her imagination) and a failure to pay contractual sick pay (which the Employment Tribunal had found was a repudiatory breach of contract). The Employment Tribunal found that the principal reason for the resignation was the alleged bullying and not the sick pay matter and rejected a claim of constructive dismissal.

 

The appeal succeeded: applying the Meikle case [2005] ICR 1 it was clear that the Employment Tribunal had been wrong to look for the “principal reason”.

There were sufficiently clear findings of fact in the remainder of the judgement for the EAT to find that a reason for the resignation was the sick pay matter and to substitute a finding of unfair constructive dismissal. [extract ends]

[dmlferguson]

Hi thanks for the case law. Sorry if I'm being simple but how does this relate to a sham redundancy??

[becky2585]

I'm not sure either - maybe wrong thread?

[dmlferguson]

During the CMD the judge advised that mediation was available and if we wanted to go ahead we should write in within 7 days. I got a letter from the respondents solicitor telling me they weren't interested. Now they are asking for a copy of the letter I sent to the Tribunal. Well I didn't send one because she said only if we were interested should we get in touch. Have I made a BOOBOO???

[dmlferguson]

The respondent has some documents that I'd like for my case. Can i request them now? Do I just send an email to their solicitor??

[becky2585]

You can request them, but they're only obliged to disclose them once the date of the tribunals order for disclosure has passed.

[dmlferguson]

Silly questions maybe but what time on Friday is the cut off to get stuff to the ET?? 5pm?? 4pm??

 

Hope you can help

[Pusillanimous]

Unless stated otherwise, the ET deadline is midnight. However, note that the Employment Appeals Tribunal (UK) is like other courts and deadlines are 4:00pm sharp.

[dmlferguson]

OK thanks.

[dmlferguson]

Hi All

 

Please can someone guide me on how to set out a schedule of loss for mulitple claims.

 

Many thanks

[dmlferguson]

Can someone help me on redundancy and being offered a suitable alternative role.

 

If you are the only one being made redundant and there is one alternative role, do they have to offer you it OR do they have to offer to let you apply for it???

 

I just need to know if offering to let someone apply is good enough or if they should be offered the job.

[becky2585]

There's no automatic right to an alternative vacancy unless an employee is on maternity or adoption leave - however if it is likely to be "suitable" - the employee could be invited to apply for the role.

[dmlferguson]

Thanks Becky

 

ACAS paints a different picture. Is that just a best practice guide?

[becky2585]

The law on redundancy is all based around the principles of fairness based on each individual circumstance. The obligation on an employer is not to go as far as inviting the employee to apply or automatically placing them into the role, they only have to highlight the alternative vacancy to the employee in some way. The employee then decides whether to apply.

 

Therefore, if the employee were to argue that the vacancy clearly was suitable, but another employee was offered the job in preference to the redundant candidate, that could be unfair (particularly if there was only one employee at risk of redundancy and the job was clearly suitable) unless the employer could justify why the vacancy was unsuitable for the redundant employee.

 

A failure merely to place the employee automatically into the vacancy would not be unfair; it would be the reasoning behind WHY the employee was not offered the job. So whilst it is not an automatic right, the employer would still need to justify their decision.

 

What have ACAS said to the contrary?

[dmlferguson]

Thanks Becky

 

ACAS don't contradict this they merely state that if there is an alternative position this should be offered to the person being made redundant. In my circumstances I was offered to apply for the position the night before I was made redundant but it was already very clear that the redundancy was a sham and that they would consider my application but that this would only be to add to the humiliation and stress and that in no way shape of form would I ever be kept on in any capacity.

 

I just wanted to clarify whether there was a distinction between being offered the position and being offered to apply for the position.

 

Many thanks

[Pusillanimous]

Did you actually apply for it? No doubt they only told you of it to keep within rules. However, they can now argue that you were advised of the vacancy but did not apply. If you did apply, you could request feedback as to why the other person got the job and not you.

 

Re schedule of loss - if you are doing this yourself it is best to look it up in a proper textbook as to how best to set it out and what to claim for.

[dmlferguson]

No I didn't apply for it as I was only told of it the day before the redundancy and knew by then that they were going to use it to humiliate me further.

 

Schedule of loss sent. I'll have to amend it further closer to the time so if I've missed anything I'm sure I can add/take it away then.

[dmlferguson]

I've been sent the bundle and there are some emails from years ago that are completely irrelevant....is this just to stress me out or am I missing something? Or is it to add to the extortionate cost of photocopying??? Can I request they are removed??

[dmlferguson]

Actually it looks like they are building a case they I was confrontational or useless. It includes personal email (lesson learnt) etc. This is a sham redundancy case....surely with no disciplinary action against me, this is useless??? About 30 emails over 2 years.....how badly can that go against me???

 

Ggggrrrr I'm starting to understand why people walk away, thank god I've got support to keep me going.

[dmlferguson]

I'm looking for some stats on women at work and childcare for my sex discrimination claim. I'm scowering the internet but thought I'd ask if anyone has any links to good sites.

 

Hope you can help

[Emmzzi]

you'll need to be more specific. Stats supporting what point/ arguement?