automatically unfair - unfair dissmisal

[mariefab]

I think that I've found a case that might help you.

 

But before I raise your hopes, can you confirm that all 3 of the following apply to your particular circumstances?

Let's do this step by step because whether, or not, the case helps you depends on a very precise series of events.

 

Step 1.

1. You had worked without a break for 5 hours 31 minutes.

2. You were asked to continue working in order to complete a (or another) task.

3. At that time you clearly stated that if you continued working without a break until the task was completed your working period on that day would be over 6 hours.

 

Are these 3 statements an accurate account of the first part of your dispute?

Can you prove this? i.e. Do the documents of the disciplinary/dismissal/appeal confirm that these 3 things happened in that order?

[mariefab]

Step 2.

What was the response when you said that continuing to work would take you over 6 working hours that day?

a) No it won't, you'll be finished before 6 hours.

b) Take a break now (at 5 hours 31 minutes) then continue until the task is finished.

c) Even though the working period will be over 6 hours, finish the task then take your break after you leave at the end of the shift.

d) Something else.. If so, what?

 

Were you given any reason in justification of the response?

Can you prove that you received the response that you claim?

[mariefab]

Yes, can you please answer the parts that Emmzzi has highlighted above?

It's important.

[mariefab]

Step 3. (please be patient)

1. After they said c you refused to carry on working because, as you had said immediately before, this would mean that you would have to work for more than 6 hours without a break.

Is this correct?

 

2. If you had carried on working until the task was finished; would you have remained at the workplace for the duration of your break at the end?

[mariefab]

OK, so you refused to carry on working.(?)

Step 4

What did they say at the time you refused?

 

a) Fine, take off then (or words to that effect).

b) Alright, you can take a break now then carry on working.

c) We'll deal with you tomorrow...

d) Nothing, I just told them I wasn't going to continue without a break and walked out.

e) Nothing, I didn't tell them I was refusing to carry on working, I just left.

f) Something else. If so, what?

 

Yes, contributory conduct can be taken into account in an automatically unfair dismissal.

[mariefab]

Yes. Mr Impatient, I do have an example to show you.

However, I'd like to make sure that it will actually help your particular case before I raise your hopes.

This is why I'm asking these questions first.

[mariefab]

Oops! My bad.

I thought that they could still take it into account on remedy.

[mariefab]

For now, forget about what had been said on any earlier discussions about breaks.

At the moment I'm not concerned with whether you took a break or whether you were entitled to a break.

I just want to make sure that you made your position clear on the relevant day.

 

So, on the date in question, after you'd worked for 5 hours and 31 minutes did, you actually say to whoever was in charge on that day something that has the same meaning as, " I won't carry on working until after I've had a break" ?

Yes or No?

 

I'm trying to definitely establish that, on that particular occasion, you either refused to do something, or you said that you would refuse to do something unless....

 

Because if you just said the job wasn't finished and left the case I found won't help you.

[mariefab]

OK, the case won't help you as you didn't make your position clear to your employer at the time.

I'm afraid that, if anything, it shows how you'll be likely to lose your claim.

I'll post it anyway though, in case it can be of help to someone else.

 

http://www.bailii.org/uk/cases/UKEAT/2012/0464_11_0302.html