URGENT! Employment Tribunal Claim POC

[themonster]

Hi Everyone,

 

I was dismissed from work due to illness 2.5 months ago, and need to file my ET1 form by the 10 July. I was trying to get representation but all avenues failed due to lack of funding, or resorces at law centres.

 

I have written the POC could some just check through and give me some advice on them.

 

 

Thanks in advance.

_________________________________________________________________________

IN THE ManchesterEmployment Tribunal

BETWEEN:

xxxxxx

Applicant

 

- and -

xxxxx

Respondent

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

Particulars of Claim

ET1 Section 6.2

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

BACKGROUND

1 The applicant was employed as a xxxx on the10 February 2010.

2 The role is an apprenticeship style trainingprogramme involving work on the company’s vessels with college phases toachieve a foundation degree in nautical science and certificate of competencyas a navigational deck officer. The phases of work and study are as follows:

a) Phase1: Initial college period.

b) Phase2: First Sea Phase

c) Phase3: Second college period.

d) Phase4: Second Sea Phase.

e) Phase5: Final College Phase.

3 The cadetship pays a training salary duringthe phases, the salaries are as follows:

a) Year1: XXXXX

b) Year2: XXXXX

c) Year3: XXXXX

During college phases there is also a housingallowance of XXXXX, excluding college holiday periods.

4 Leave is earned during the sea phases at aratio of 3:1, with trips on board the vessels usually lasting 9 weeks.

5 The first trip on board the ‘XXXXX’ lasted 10weeks, where there were no problems.

6 The second trip was on the ‘XXXXX’ thiscommenced on the 11 November 2010 during the first few days the applicant fellill and instructed the captain he wished to leave. The applicant left thevessel on 16 November 2010.

7 On returning home the applicant visited thedoctor and was signed as unfit for work due to anxiety.

8 The company was informed and the applicantcontinued to remain off sick until 06 January 2011. After speaking with thecompanies training supervisor, XXXXX, the applicant returned to work on the ‘XXXXX.The trip was short due to a holiday booked prior to being ill and ended on 15January 2011.

9 After going on holiday, the applicantreturned to work on the ‘XXXXX the trip was from 07 February 2011 until 21February 2011. This short trip was due to returning for the second collegephase.

10 The second college phase was completedsuccessfully.

11 The applicant commenced the second sea phase,and returned to the ‘XXXXX on 21 December 2011.

12 During this trip the applicant again fellill, and informed the captain. The captain suggested continuing and monitoredthe situation.

13 After a few more the days the applicant decidedthat he wasn’t fit, and requested to leave. The applicant left the vessel onthe 7 January 2012.

14 On return the applicant visited the doctor,and was signed off with depression. In addition the applicant’s mother wasdiagnosed with cancer for the second time, which added considerable strain onthe applicant’s condition.

15 The applicant continued to send doctors notesto the company, and responded to the company’s questions and phone calls.

16 Around the 4 April 2012 the applicant receiveda phone call from the companies training supervisor, asking him to attend ameeting to discuss “returning to work” at XXXXX

17 The applicant agreed to attend.

18 This was followed by a letter, dated 28 March2012, and a rail warrant to cover expenses to the office. The meeting wasscheduled for the 11 April 2012.

The Meeting

19 On the 11 April 2012, the applicant attendeda meeting at XXXXX, in attendance at the meeting was: The applicant; XXXXX; andXXXXX. Both of XXXXX.

20 XXXXX opened the meeting by explaining thatthe purpose of the meeting is to discuss the current sickness situation, and tofind a way in moving forward to resolve it.

21 The meeting then continued to discuss theevents during the trips at sea. This lasted approximately 10 minutes.

22 XXXXX then continued to outline that to beeligible to sit the final oral examination the cadet is required to have 12months sea time, and in his opinion the applicant could not complete this toremain in-line with the other cadets at the same time. He then stated that thiswas in breach of the training agreement and that the contract is null and void.And asked how the applicant felt about that out.

23 The applicant indicated he wasn’t happy aboutthat as it is something he wanted to complete.

24 XXXXX then continued to say that he doesn’t believethat the sea time can be completed with the current confines of the illness. Hethen went on to discuss the leave period and that the applicant was in negativeleave of 29 days; and that couldn’t be recovered with the sea time.

25 The applicant then went on to discuss hissituation and discussions with his doctor. He explained that the doctor had puthim on citalopram and was monitoring the situation. And that the applicant haddiscussed returning to work with his doctor and that the doctor would preferthat the trips be shorter, around 1 month, to manage the situation.

26 XXXXX explained that the leave ration wouldthe only allow for 1 weeks holiday, which XXXXX confirmed and stated that hebelieve this would be too intense for the applicant to do.

27 The meeting then returned to the events onthe first illness on the MV Clyde fisher.

28 XXXXX then returned the meeting to fact thathe believes that the applicant could not complete the required sea time in theconfines of the training agreement.

29 XXXXX then went on to discuss that there were2 options as far as he could see.

a) The companyterminates the employment, which doesn’t look good going forward; and that theywould seek the negative leave.

b) Chooseto leave, and the company cannot recover the outstanding leave.

30 The applicant decided that he didn’t want toterminate his employment.

31 They stated that they were unhappy with thelack of communication with the company.

32 The applicant explained that he responded toall correspondence from the company.

33 XXXXX then went on to explain that theapplicant should consider resigning.

34 XXXXX and XXXXX left the meeting to discussthe matter and look at the training agreement. The applicant asked if theycould provide a copy of the training agreement.

35 Upon returning XXXXX provided a copy theagreement.

36 The meeting went on to discuss the conditionsof the contract. Detailed below:

a) Absenteeism:XXXXX concluded that he believed that the applicant had not breached this section.

b) Terminationof Cadet Agreement – illness or injury: XXXXX stated he believed this had beenbreached.

c) Inaddition it was again stated that the applicant couldn’t complete the sea timeunder the agreement, and was a breach under “Sea Service Phases”.

d) Theapplicant disagreed under the heading “Expiry of the cadet agreement”. Whichthe applicant believed terminated the agreement when the final day wasphysically attended, and that the sea phase would be extended until therequired sea time was completed.

e) XXXXXdismissed this on the grounds that he believed that sea phase expired when theentire intake were due back in October.

37 XXXXX then explained that his only option wasto recommend to the employer that the agreement be terminated.

38 The applicant acknowledged XXXXX decision,and explained that it was out of his control and that his intention was tocomplete the course.

39 The applicant explained that the last time XXXXXlast visited college, it was discussed that due to the first period of illnessthat the period to get the required sea time was limited, and that it may berequired of the cadet to delay returning to college to achieve the 12 months(Back Phasing). The applicant suggestedthat he would complete 10 week trips with less leave to try and prevent this.

40 The applicant requested that the option toback phase be made available in an attempt to resolve the matter.

41 The conclusion was that the company were notwilling to do this. XXXXX explained there were a large number of applications,and he would prefer to offer the position to new applicants.

42 The meeting then discussed a conversationthat the applicant had with a lecturer at the college. In which it wasexplained that the applicant had discussed the options available to him in theevent that he decided to leave the training programme.

43 XXXXX then concluded the meeting that hewould recommend to the employer that the contract be terminated, and that theemployer may require another meeting, or they may just terminated theemployment, and seek redress of the 29 days negative leave.

Following the meeting

44 A letter was received on 14 April 2012 fromthe employer, XXXXX. The letter explained that the agreement would beterminated immediately and explained the reasons. The letter allowed the rightof appeal.

45 An appeal letter was sent dated the 19 April2012, and was first class recorded post.

46 The letter was received on the 24 April 2012.

47 A response was received on a letter dated 27April 2012, stating the appeal had arrived too late, and would not beconsidered.

Unfair Dismissal

48 The applicant claims that he was unfairlydismissed and that the employers acted unreasonably when dealing with the matter.;

The applicant claims,

49 The employer failed to follow procedures and ACASguidelines.

50 The employer failed to provide any warnings,verbal or written.

51 The employer failed to advise himsufficiently of the company’s grievance and that it was unfair to suggest themeeting was to discuss returning to work.

52 The applicant was unaware the meeting couldresult in dismissal; and was therefore unable to prepare adequately.

53 The employer failed to consult adequatelywith the employee regard the long-term sickness.

54 The employer failed to investigate the illnesssufficiently either by way of obtaining a medical report or otherwise.

55 The employer failed to provide any noticeperiod.

56 The employer failed to deal with the appealadequately.

a) Thetermination letter took 3 days to arrive.

b) Theappeal letter was sent 5 days later.

c) Theappeal letter took 5 days to arrive in Guernsey.

Thereforeeven if the appeal had been sent on the day it was received it would never hadarrived within the specified time limit of 7 days from the date of the letter.

57 Theemployer failed to make reasonable adjustments.

[lbruk]

i would say its very good, Change applicant to Claimant as that is the term used. It sets out very clearly what you are claiming and on the ET1 thats what you need to do.

 

Good Luck

[madari]

Add an extra para: 58) The applicant/claimant contends that in all the circumstances the dismissal was procedurally and substantively unfair

 

The above is very important.

[elche]

Hi Monster,

 

I have only skim read this and it has been a long time since I filled in an ET1, but some questions come to mind for me:

 

1) You mention at 55 no notice pay was paid. This is potentially a wrongful dismissal claim. Now from memory there is a separate section on the ET1 re notice pay I think. But you should consider explaining this further.

 

I don't think the POC is quite complete yet.

 

You mention an 'apprenticeship style' agreement. Was this a proper 'legal' apprenticeship. If so the POC needs elements adding to it I reckon as regards future losses etc

 

Were there any contractual provisions regarding, and what do they say as regards:

 

a) Notice of termination to be given

b) Any capability or dismissal procedures

c) Were you in possession of sufficient details as to comply with your ER's requirements to provide a written statement at the time of dismissal? If not then this should be added as a separate head of claim as it carries 2 or 4 weeks pay.

d) Did you ask for written statement of reasons for dismissal?

 

Amongst many other things......

 

Che

[elche]

I see Becky2585 is viewing your thread...... love to hear your thoughts Becky:-)

[becky2585]

I see Becky2585 is viewing your thread...... love to hear your thoughts Becky:-)

 

I feel stalked...

[becky2585]

I actually didn't want to intervene. The POC is very well drafted for a lay person. You don't want to make it too "perfect" as the Judge may think you're more qualified than you are and expect too much of you, so it's a good balance as it is. It's articulate and puts the points across well, without the confusing legalese.

 

To the OP, only things that concern me are the fact that you're based out of the UK and the work involves sea work... The rules can be slightly different. But I presume the CAB have advised you fully and there aren't jurisdictional issues?

[elche]

ha ha .... yeah for your knowledge only though

[elche]

I actually didn't want to intervene. The POC is very well drafted for a lay person. You don't want to make it too "perfect" as the Judge may think you're more qualified than you are and expect too much of you, so it's a good balance as it is. It's articulate and puts the points across well, without the confusing legalese.

 

Yeah agreed, but do you not think there could be additional heads of claim missing. When I worked for claimants I would never let it go without checking these additional potential claims.

 

For example what about a claim for loss of statutory rights? Was that not routinely awarded at about £200-£350?

 

I agree that litigants in person are treated nice by Et's and they will bend the rules as far as they can as regards what's pleaded in the POC as regards amendments to what is pleaded.

 

But if you do not plead a potential head completely would they allow it subsequently.... ????

 

My main point I suppose is that a claimant (be they LIP or represented) should never miss out a completely separate head of claim as they may not get this if pleaded later.

 

Che

[themonster]

Thank you madari, will add that in now.

 

Thank you elche: What do you mean by legal apprenticeship? My employment was a training agreement its not listed as a modern apprenticeship, but is very similar in nature. The company pays for all the training involved, and at the end of the programme i would have become a qualified navigational officer. The pay is well below minimum wage, so i assume its classed as an apprentaship in that respect. Monthly pay was around £500.

 

Under the termination of agreement it just says that the company can terminate the agreement on certain grounds, no mention of notice? But the letter they sent following the meeting said that my contract was terminated with immediate effect, i assumed they had to provide some form of notice?

 

I am unaware of any capability or dismissal procedures by the company? What is ER's??

 

I didnt ask for a written statement of dismissal, just recieved the letter after the meeting.

[themonster]

Becky, the CAB couldnt help to much extent and just advised to do what i was doing, as only seen them when sending the appeal letter. The company i work for is based in guernsey, but the ships operate primarily in the UK and ocassionaly north europe. The parent company of the company i work for is uk based, i didnt know whether to include them in the claim or not? They are who i have had all contact with. I was reading some reports by nautilus and some solicitors websites, which explained that the UK tribunals do allow claims for seafarers with a connection to the UK.

[madari]

I would be inclined to include both companies initially until it is clarified as to which company is legally liable for your dismissal, at that point you can always withdraw the name of one of the companies if need be,as late amendments are very rarely granted

[becky2585]

Yes, if there's any query over which company to sue, include both! Respondents can be removed later in the process.

 

I would definitely include loss of statutory rights (£350). But I personally don't mention it in the particulars, as it's fairly obvious. It's something I put in the Schedule of Loss.

[elche]

The pay is well below minimum wage, so i assume its classed as an apprentaship in that respect. Monthly pay was around £500.

 

This is why I wonder if you were in fact an 'apprentice' which in employment law is a sui generis category of worker, which as a consequence creates a series of unique situations that can effect your entitlement to pay (as in you got less than NMW), and also could affect the right things to write in the POC.

 

What is ER's??

 

I get lazy..... but mean ER employer, and EE employee

 

I didnt ask for a written statement of dismissal, just recieved the letter after the meeting.

 

Ok. No need to include a claim for failure to provide this then, but there are definitely additional heads of claim that I would put in my POC if it were me; for example the loss of statutory rights reflects that in a new job you will have to build up 2 years service b4 being able to bring a an unfair dismissal claim.

 

I'm well into a bottle of rioja but I still think there are additions that you should consider to your POC.

 

Che

[madari]

Loss of statutory rights will be part of /included in the schedule of loss...will it not??

[themonster]

Thanks elche, what do you mean by "creates a series of unique situations that can effect your entitlement to pay" and "could affect the right things to write in the POC".

 

I remember reading that if apprentices are dismissed they can claim future earnings? But i don't know what the legal test is for apprentice?

[elche]

Loss of statutory rights will be part of /included in the schedule of loss...will it not??

 

Agreed madari, I suppose this particular one is implicit in the claim and will be fine to pop in the schedule of loss.

 

But I just used to get a bit paranoid when drafting and try to 'cover all the bases'.

 

Thanks elche, what do you mean by "creates a series of unique situations that can effect your entitlement to pay" and "could affect the right things to write in the POC".

 

I remember reading that if apprentices are dismissed they can claim future earnings? But i don't know what the legal test is for apprentice?

 

 

As for information about this, I apologize as I know this is a lot of text , but it comes from, in my opinion, the best source of employment law guidance.

 

A contract of apprenticeship differs from a contract of employment. The essential feature of an apprenticeship is that the apprentice contracts to be taught a trade or calling (R v Crediton Inhabitants (1831) 2 B & Ad 493; Horan v Hayhoe [1904] 1 KB 288; Wiltshire Police Authority v Wynn [1980] ICR 649, [1981] QB 95, CA). Although the apprentice contracts to serve his master, technically the relationship is not one of master and servant (Horan v Hayhoe).

 

 

[92]

 

 

 

Apprenticeship has declined in importance over the years, and the law of apprenticeship has become a recondite subject. Some of its quaint features are explained by its history. Before the industrial revolution, apprentices used to live in the master's premises. The master was in loco parentis and assumed the duty to maintain the apprentice, providing free board and lodging, medicine and medical care. By the same token, there was no implied right to wages in the apprentice. The master had a right reasonably to chastise his apprentice; but an attempt to exercise that right today would invite an action for assault (R v Josephson (1914) 110 LT 512).

 

 

[93]

 

 

 

Features which are still of practical importance include the limited right of dismissal. Misconduct which would justify the summary dismissal of a servant at common law does not justify the dismissal of an apprentice, though it seems that an apprentice may be dismissed if his conduct is so bad that it is impossible to teach him the trade (Newell v Gillingham Corpn [1941] 1 All ER 552; Learoyd v Brook [1891] 1 QB 431). If an apprentice is wrongfully dismissed he may have a claim for enhanced damages by reason of the loss of his prospects as a tradesman on completion of his apprenticeship (Dunk v George Waller & Son Ltd [1970] 2 All ER 630, [1970] 2 QB 163, CA). See also Wallace v CA Roofing Services Ltd [1996] IRLR 435, QBD. The case concerned an apprentice sheet metal worker who was dismissed for reason of redundancy after 19 months and claimed damages for breach of contract, arguing that the contract was one of apprenticeship and therefore not subject to a redundancy dismissal. This was held to be the case and the matter was remitted for damages to be assessed, presumably on the basis that the contract should have been one for four years.

 

 

[93.01]

 

 

 

However, the position of a 'modern apprenticeship' has caused problems. It differs from a traditional apprenticeship in that it involves three parties, the individual, the employer and the training organisation; the basic obligation on the employer is not to train, but to allow access to training by the organisation. In Whitely v Marton Electrical Ltd [2003] IRLR 197 the EAT under Recorder Underhill held that such an arrangement was at least analogous to a traditional apprenticeship (the key point being that it was therefore not terminable by ordinary notice, and so an early termination during its anticipated currency could sound in damages for breach of contract). Shortly afterwards, however, another EAT under Wall J held to the contrary in Thorpe v Dul [2003] ICR 1556, [2003] All ER (D) 14 (Jul) and indeed went further and held that it was neither a contract of apprenticeship nor a contract of employment. The matter was reconsidered by the Court of Appeal in Flett v Matheson [2006] EWCA Civ 53, [2006] IRLR 277. Agreeing with Whitley, they held that a modern apprenticeship does satisfy the statutory definition of a 'contract of apprenticeship'; given that the employer pays the individual and allows him or her time off for study, it is not fatal to the definition that the academic component is actually provided by a third party. As in Whitley, the practical effect was that the individual could not be dismissed merely on notice during the currency of the apprenticeship. In Chassis Cab Specialists Ltd v Lee UKEAT/0268/10, [2011] All ER (D) 178 (Feb), EAT Underhill P cited this summary of the law with approval and criticised a tribunal for not considering and applying it, but instead deciding on apprenticeship status (or lack of it) merely as a matter of impression and common sense.

 

 

[94]

 

 

 

A traditional contract of apprenticeship was usually made by deed, though strictly the only formalities are that it is signed and in writing (Kirkby v Taylor [1910] 1 KB 529; McDonald v John Twiname Ltd [1953] 2 QB 304, [1953] 2 All ER 589, CA). However, an oral contract of apprenticeship is valid in law but unenforceable unless and until acted upon (Edmonds v Lawson [2000] IRLR 391, [2000] ICR, 567, CA). Apprentices may be minors (infants), in which case the contract will be subject to the normal rules that a minor is not bound by a contract unless it is for his benefit, and that he may repudiate his contract upon attaining his majority (see para [346] below). For that reason it is not uncommon to join his parent or guardian as party to the contract to guarantee his performance of it.

Still awake ....?

 

Che

Edited July 5, 2012 by elche
my emphasis

[becky2585]

Loss of statutory rights will be part of /included in the schedule of loss...will it not??

 

Yep

[themonster]

Ok so the case law is abit over my head but this is my understanding?

 

Its not a modern apprenticeship as there is no third party, unless you count the parent company which i dont think would apply. I assume this means companies like JTL who act as an intermiatary like electrical and plumbing appreticeships.

 

The things which suggest it is a traditional apprenticeship are:

 

a) The salary is below minimum wage - i assume this only applys to apprenticeships.

b) The training is to be taught a trade, i have no official role onboard other than to study the Officer of the Watch. In addition i have to complete a training record book, which outlines the tasks i need to learn on board to be eligible to qualify.

c) By dismissing me i can no longer become an officer of the watch.

d) The company allows me time off to study allbeit not in invidual days off, but in phases due to working away.

e) the contract allows for minors to join, with consent of their parent/guardian - although this doesnt apply to me.

 

Do i need to make significant changes to the POC if it is apprenticeship?

[elche]

Do i need to make significant changes to the POC if it is apprenticeship?

 

I appreciate the urgency, and of course don't miss your deadline for filing at the ET, but I wonder if you could get some professional help. I know you said you tried the law centres, what about Community Legal Advice? (just google it).

 

I think it would be imprudent to rush in to an employment claim being unsure on something so fundamental as your exact employment status.

 

I have never drafted a claim for a dismissed apprentice so do not claim to know any definitively right answers to the above.

 

What I do know is that exact employment status will always turn on the precise facts of the particular case, a level of detail that you can never get on an open forum.

 

I also know, from the above, that IF you were an apprentice in the 'legal sense' (and I'm not sure if you are or are not from the information), then (assuming you were unfairly dismissed) such status carries with it certain unique claims that should, I think be explained more clearly and / or explicitly claimed in the POC.

 

Try CLA as it is assessment on the phone and if eligible, 2 hours of advice (not representation), on an empoyment matter; i.e. they could help with the POC if you are eligible.

 

That said, your POC is still great, but, I think, could be improved.

 

Che

[lbruk]

I would file the POC asap. You do not need to quote case law until the hearing and probably even then only in the closing submissions. You will have plenty of time to find case law to support your claim .

[themonster]

Hi Everyone, I'm going to go to the manchester tribunal to file on monday morning, could some one advise do i just submit the ET1 Form to the tribunal, or do i have to send it to the reponsdant like in the small claims?

[madari]

Send it to the Tribunal, you can do it online, the Tribunal will then send the ET3 to the respondents.

 

Good luck

[themonster]

Hi Everyone, I submitted the claim and it has been accepted by the tribunal, and they have sent out case management orders. The first is to provide a schedule of loss by the 8 August, Could someone provide with me some guidance as to what i need to provide on this as i am completely cluess. Is there a template of some description for this? Any help would be much appriciated.

 

In addition i contacted the CLA and am awaiting a form to complete to confirm eligibility for them to take the case forward, but they have told me to continue with the process myself until such they confirm they can take the case, which hopefully they will and hopefully take some of the pressure off. But i dont want to leave myself in the same position as last running around like a lunatic at the last minute.

[lbruk]

Blimey that was quick of the tribunal! I had to wait 6 months before any orders came though!!

 

OK so schedule of loss is basically what you are claiming. There are a number of parts, i have inculded a sample of mine below.

 

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

Schedule of loss

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

 

1. Background information.

a) Date of birth

i) xx/xx/xxxx

b)Age at effective date of termination

i) 32

c) Number of continuous years service with respondent:

ii) 16

d) Gross pay before dismissal:

i) £xxxxx.xx per annum

ii) £xxxx.xx per month

iii) £xxx.xx per week

e) Net pay before dismissal

i) £xxxx.xx per month

ii) £xxx.xx per week

f) Net pay in new role:

i) £xxxx.xx per month

ii) £xxx.xx per week

 

2. Unfair dismissal

a) Basic Award

i) 0.5x5x400 = £1000 [this is your weekly wage x half the number of years served under the ages of 21]

ii) 1x11x400 = £4400 [this is your weekly wage x number of years service over the age of 21]

 

b) Compensatory Award

i) Past loss of earnings

1. Loss of notice pay

2. Difference in pay

ii) Loss of statutory rights £600 [this is for the now 2 years that you have to work to get your rights as an employee back]

iii) Other losses including, pension, health insurance etc

 

3. Future Losses

i) [Put in the same losses for the next 6 months]

 

4. Then add in Discriminatory, harassment, victimisation etc as appropriate