Do I have a case for Constructive Dismissal and Personal Injury?

[curl75]

Hi everyone. I'm new to the forum and I wondered if somebody could advise me on whether I have a case for Constructive Dismissal and Personal Injury? I'll try to keep it as brief as possible but as is generally the case with these matters it is a bit long winded.

 

I had been working for the company for about 6 months when I slipped a disc in my back. The job was quite physical, a lot of lifting and twisting and there is no doubt that the job was the cause. The slipped disc put pressure on a nerve and caused damage to that nerve. I lost all strength in my left leg and over the course of two years it has gradually got stronger. The best I can hope for is 80% of original strength in my leg. I was off work for around 3 weeks. When I came back I told work that the job was the cause of my slipped disc and they offered somebody to help with the heavy lifting which I accepted for a short period of time.

 

I couldn't afford to be off from work so I just had to struggled with it. They run a two shift system and over the next 12-14 months the second shift didn't run for large periods of time. This was due to no staff or the staff not being skilled enough. The company kept on refusing my holiday saying that they were too busy (nearly all verbal requests) and they kept on running out of materials. So they steadily increased my workload and the pressure of that workload. Before I started in the production area I was working in there were 3 full time staff and one floating member doing the same workload as I was.

 

Before my bad back I didn't have one day off sick but from the February 2012 when my back went to May 2014 I had 10 periods of sickness. 4 general illnesses, 3 for my back, 2 for another work related issue and 2 for which the company has lost the records. At the end of January 2013 after 9 periods of sickness I was given a stage 1 warning and put on absence monitoring. I appealed the warning. Basically I said the majority of my sickness is work related, you won't let me have any holiday (I had more holiday left than anybody in the company), I'm having to work extra hours to keep up, is it any wonder I'm sick. The warning was upheld.

 

Over the next couple of months there was a large back payment of wages. I should have been getting a shift allowance but wasn't. You could tell they really weren't happy about it but I made sure before I approached them that my case was water tight. That's when things started to get really difficult. It was clear they wanted to get rid of me but it's nothing I can prove or have any evidence to back up.

 

The end of April I fell sick again. I phoned in and left an answer phone message to say I wouldn't be in work. The company claimed they didn't receive the message. I was given a stage 2 warning for not ringing in and a stage 3 warning for continued sickness while on absence monitoring. I was told by my line manager who in turn was told by the person who conducted the disciplinary that I hadn't been treated fairly and if they were me they would appeal the warnings. Again this nothing I can prove, it was a quiet word.

 

I appealed the warnings on the grounds that the message could have been lost and it's the first time I hadn't rang in. I also stated that the second shift wasn't running and also gave the same reasons as for the stage 1 warning. When we had the appeal meeting the company had changed the structure of the warning. They said I hadn't been given a stage 2 warning and that the incident was so serious that it had gone straight to a stage 3 warning. My staff representative brought this up in the meeting and asked to check the minutes from the disciplinary meeting and she was completely ignored. The person conducting the appeal just bullied his way through it. If I said black he said white and I didn't have any valid reasons. He upheld the warning. The day after the meeting the second shift started running and ran everyday. I was also never refused a holiday after the meeting.

 

Up until that point I had been in daily back pain. I just thought my back has been damaged and it's something I have to live with. But when I finally got some decent time off my back pain went away. There were a lot of letters between me and the company because after the meetings they were always trying to say I had said things I hadn't. I was also trying to get copies of the minutes of the meetings which would prove the difference in the warnings (which they refuse time and time again). In those letters I explained I had been in daily pain and having to exercise to get through the working day and that when I had some time off the pain went away.

 

The company tried to deny they knew I had a bad back. They also kept trying to say I had said this, I didn't say that etc. I was damaging my back by being there, they won't even acknowledge I have a bad back, I'm being flat out lied too and in the end it all got too much and my doctor signed me off sick for stress.

 

While I was off sick the company kept on trying to get me to come to an interview and they did offer to send me to an Occupational Health Professional. But by this time it was to late for me. I had no trust in the company because what ever I said they disagreed with and I didn't trust them not to try too sack me at the meeting. I handed in my notice in basically stating that I couldn't trust them to be truthful and they tried to deny I even had a bad back let alone offered to help.

 

I've got the stage 2 and 3 warnings and the letter after which gives a different stage 3 only warning. I also have another letter from the same person who upheld the appeal making the mistake of saying I was given a stage 2 and 3 warning. I also have all the letters from the company which I think shows a refusal to help in anyway and be as difficult as possible i.e. I'm having to ask for the same documents over and over again.

 

Sorry, I know that's long. A lot went on and it's difficult to try and cut it down and not miss something which might be relevant. If anybody could give me some advice on whether they think I have a good shot at Constructive Dismissal or a claim for my back I would be grateful.

[Emmzzi]

a) were you trained in lifting technique?

b) did you follow that training to the letter?

c) is there a risk assessment for the job?

d) are you aware you have contributed to your illness by coming in when not recovered?

 

I'd say more chance of personal injury claim succeeding, but it depends on the answers to a, b and c.

[steampowered]

When were you dismissed? If you are out of time that will kill your claim stone dead I'm afraid. The time limit for bringing a constructive dismissal claim is 3 months from the effective date of dismissal (i.e. the date of resignation plus your notice period).

 

If you are in time then I think there is a possible CD case here. However its not the strongest claim in the world. It was a bad move to refuse to go to an Occupational Health Professional. On a purely financial level it is probably worth paying the court fees to have a punt, this would be an expensive case to defend so the employer may be prepared to offer a commercial settlement.

 

There isn't enough information to give an informed view on whether you might have a personal injury case. You would need to be able to point to negligence or breach of Health & Safety by the employer.

[curl75]

Emmzzi -

 

a) Roughly 4-5 months into my employment I was shown a general health and safety dvd which included a short bit about lifting. The dvd was shown on a computer in a busy office so not ideal conditions or training.

 

b) The safe lifting part of the dvd was just general spread your legs a little, keep your back straight, look ahead type training. This is something I have always tried to do anyway.

 

c) I'm not aware of any risk assessment. I've never seen one or heard of one. Knowing the company I would be surprised if one existed.

 

d) I eventually got a good amount of time off over a short period. During my time in work between the holiday dates the other shift did all the mixes (the heaviest part of the job). That was the first time in 18 months that I had gone more than 2 days without back pain. Up until that point I didn't realise that the job was still damaging my back. I just thought I had damaged it beyond repair and I would have to put up with back pain for life. I explained the part about my back pain stopping when I had time off to the company in writing a couple of months before I resigned.

 

I was telling the company all this and they were doing nothing. Once I realised the job was still damaging my back and they wouldn't help in anyway as far as I was concerned I didn't really have a choice.

 

steampowered - I handed my notice in at the beginning of November with a leaving date of 14th November. So that gives me around 4 weeks? I didn't refuse to go to the OHP as such. I didn't acknowledge it in anyway in our correspondence until after I had handed my resignation in.

 

Thank you both for your replies. When your trying to deal with stuff like this it can feel as if your banging your head against a brick wall! A helping hand is much appreciated.

[Emmzzi]

So you were trained. Despite being distracted you made no request to see the information in more detail later.

 

Also you said in your first post

 

"I couldn't afford to be off from work so I just had to struggled with it."

 

And of the lifting

 

"This is something I have always tried to do anyway."

 

did you or didn't you? Trying makes no odds.

 

The language you are using makes it very easy to poke holes in your case.

[curl75]

I must admit that the written word isn't one of my strengths. I struggle trying to explain what I mean in writing.

 

What would help my case?

[Emmzzi]

Probably that there was no risk assessment for the job?

[steampowered]

If you want to proceed with a claim I would recommend seeing an employment solicitor about this. Standard unfair dismissal cases are doable by well prepared litigants in person, but constructive dismissal cases are much more difficult. Many solicitors and case handlers offer no-win-no-fee arrangements for Employment Tribunal claims.

 

It sounds like you are in time which is great, but 4 weeks is not a huge amount of time to prepare an ET claim so you need to make a decision about what to do quickly.

[smokejumper]

Steampowered,

 

Not trying to contradict you as you are much more knowledgeable than me.

 

But am I right in saying that just because a claim is out of time it is not necessarily "stone dead".

 

I believe you can still bring a case if there was a justifiable reason why you could not do it sooner and it's down to the tribunal to decide if they still have jurisdiction.

 

Although from present experience the respondent can claim an unfair trial because of length of time they cannot gather evidence to defend. The judge stated an unfair trial is very difficult to win/prove.

 

However all this is a moot point as the OP is within time.

[steampowered]

Steampowered,

 

Not trying to contradict you as you are much more knowledgeable than me.

 

But am I right in saying that just because a claim is out of time it is not necessarily "stone dead".

 

I believe you can still bring a case if there was a justifiable reason why you could not do it sooner and it's down to the tribunal to decide if they still have jurisdiction.

 

Although from present experience the respondent can claim an unfair trial because of length of time they cannot gather evidence to defend. The judge stated an unfair trial is very difficult to win/prove.

 

However all this is a moot point as the OP is within time.

 

Hi, no worries always happy to clarify.

 

Its important to distinguish between discrimination claims and unfair dismissal claims. In discrimination claims the 3 month time limit can be extended if it is 'just and equitable'. This is not as broad as it sounds and case law says extensions should be an exception rather than the rule, but its not a particularly strict test.

 

In unfair dismissal claims the 3 month time limit can only be extended if it was not 'reasonably practicable' to present the claim in time. This approaches things from a different angle. In other words you can't just rely on an excuse for not presenting in time, you have to show that it was actually not possible for you to bring the claim within the 3 month time limit. This is extremely strict - in theory an extension is possible but you would need a very good reason, something like you were too ill to file the claim. If you only have a rubbish reason like you didn't know about the time limit or you were too busy to complete the claim form that is generally not good enough and in that kind of situation I would say the claim is stone dead.

[smokejumper]

Thanks for taking the time to explain and going easy on me ;-)

[curl75]

If there was any chance of making a case I was always going to give it a go. I'm angry at being lied too and the company trying to deny that I had any sort of injury. I used to be very active and I did a lot of ultra distance running and mountain biking. It's not possible to do that to anywhere near the level I was, so it's had a massive impact on my life. To then be treated as I have been boils my blood to be honest.

 

Due to the lack of time is it possible to fill in the ET1 form myself and then have a solicitor present the case? Or would I have a far better chance by approaching a solicitor from the start?

[steampowered]

Due to the lack of time is it possible to fill in the ET1 form myself and then have a solicitor present the case? Or would I have a far better chance by approaching a solicitor from the start?

 

Ideally you would want to involve a solicitor from the start. But if you have to submit the ET1 yourself that's not the end of the world. As long as the ET1 makes it clear what kind of claim you are bringing on a very basic level you are good to go. The important thing is to make sure that you do not miss the time limit (3 months minus a day from effective date of dismissal).

 

There is a long road between filing the ET1 before your case gets presented to the Tribunal. There will be a disclosure of documents stage and both parties will need to exchange witness statements. Your witness statement is where the nitty gritty details will go.

[curl75]

I went ahead with the claim and it was accepted. My previous employer has agreed to make a 'commercial settlement'. I'm a bit lost on the wording of the document and I wondered if someone could put it into layman's terms for me?

 

In the original draft of the agreement they wanted me to sign was the following paragraph,

 

3 - The terms of this Agreement are in full and final settlement of the Claims and all or any other claims or complaints that the Claimant has or may have now and/or in the future against the Respondent and any Group Company (or any of its or their officers, directors, shareholders, employees or agents) whether arising directly or indirectly out of or in connection with the Claimant's employment with the Respondent, his resignation, the termination of his employment or otherwise and whether arising under common law, tort, statute or otherwise and whether arising in the United Kingdom or in any other country in the world or any claim under any directive or other legislation which is applicable or enforceable in the United Kingdom by virtue of the United Kingdom's membership of the European Union and any other claim in respect of which a conciliation officer is authorised to act.

 

I wasn't happy with this because it would stop me from making a claim for my back injury. In my mind they are two separate claims and should be dealt with as so. Acas are acting as a mediator and suggested a COT3. The company's solicitor has come back with an addition to the above clause which reads,

 

“This does not include any claim in respect of latent personal injury in respect of which the Claimant is unaware, and could not reasonably be aware, at the date of this Agreement. The Claimant warrants that he is not aware of any facts or circumstances which do or may give rise to a claim for accrued pension rights and/or personal injury as at the date of this Agreement.”

 

I'm not sure if I'm reading this correctly. To my mind the most important bit is 'This does not include' and what they are actually saying is I can make a latent personal injury claim but I can't make a claim for something I already know about i.e. my back. I have asked a family member and they read it the other way. So, I'm a bit confused and wondered if somebody can help?

[Emmzzi]

your interpretation is correct; as you know about your back injury you could not claim for it again later. if however you had asbestos poisoning, for example, no one knew about, caused by an unsafe environment, you could claim for that.

[happyhelper]

Hi Curl 75. Never seen your post before, but it is a fascinating read, and clearly Steampowered's contribution has been invaluable.

 

I have seen many such COT3's and/or compromise agreements.

 

IMHO you need to urgently see a professional solicitor with experience in Personal Injury and Employment Law, or better still a barrister via direct access. A law firm would most likely see you at no cost for an introductory meeting, and from what you say in the post they may well act for you on a no win no fee basis re your alleged PI claim. One problem in that regard though ; it's 2 years since the incident. Some law firms are reluctant to act on PI cases at this late stage...in theory you have 3 yrs to make a claim. I make a health warning re solicitors, but that's just my own gripe. If you can afford a barrister I'd appoint one preferably based on a recommendation.

 

The compromise/ COT3 wording should ideally be struck out. Even if it were not I understand that such terms may be unenforceable. I think you you need a qualified professional to be appointed in order to put your case across.

 

It may be a distinct likelihood that the quantum of a PI claim may be higher than an ET claim. Your prospects of a CD claim are IMHO less than 50%. CD claims are notoriously difficult to win and the statistics are against you. In any event that's now a mute subject as you have an offer on the table. You cannot disclose the sum being offered but as a ballpark I'd expect an offer in the order of £3K-£5K (tax free) and you must ask for a guaranteed reference with agreed wording.

 

Do you have legal expenses insurance as a bolt on to your home/ contents insurance ?

 

Finally, I often deal with disability discrimination issues. I am not medically qualified per se, but I have a hunch that you may be categorised as being disabled as a result of a workplace incident under the Equality Act 2010. The topic is a minefield, but if you were disabled then that may add more quantum to a PI claim. In this regard may I recommend that you call the following non commercial free at point of service knowledgeable organisation :

 

http://www.equalityhumanrights.com/about-us/equality-advisory-support-service/

 

In any event, we wish you the best.

[curl75]

Thank you both for your replies. I've been waiting on a letter from my Doctor with regard to my back to see what it says. That is now ready (but I've yet to read it) and I'm going to take it along with everything else and seek professional advice.

 

On a side note I missed something out of my first post which is relevant. I suppose in my ignorance I did realise the significance of it. When I had my Stage 2&3 warning meeting the manager who was running the meeting reviewed my bad back. He agreed that there was a problem, was surprised nothing had been done about it and agreed to move me to another department. That transfer never happened despite repeatedly asking about it. The job was more or less exactly the same as mine but without the heavy lifting and the department was being run by the manager who held the warning meeting. So, there are no excuses as to why I couldn't be moved.

 

As a layman I'm guessing that this is significant and would have a major impact on my back injury claim. Hence them trying to get me to sign away any rights to a future claim. It also explains the refusal to give me the minutes from that meeting.

Edited February 20, 2014 by curl75

[Emmzzi]

Hugely significant yes!

[steampowered]

I wouldn't read into it too much. Full and final settlement language is quite standard for compromise agreements and probably suggested by the solicitor rather than requested by the employer. Employers do not want to settle one claim made against them only to find you immediately bring another claim.

 

If the employer insists on a global settlement, which I imagine they will do, if you want to bring a PI claim I think you need to get on with it ASAP or at least get some advice on where you stand.