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    • So with a long working history, which she can evidence, it should not be a problem. Still have to go though HRT process for any benefit application, if they have been out of the UK for more than 6 weeks. It won't be a smooth process though. Suggest they try to get advice via Embassy, before they start any journey.
    • Dep Thx Eric's Brother. There was a person on this forum who told me his case was thrown out at the same court because of the contract. I requested more info, but he has disappeared since his case was dismissed.  I was just wondering whether it was worth whacking off a letter to IPS pointing out one of their members, using their logo, is making a claim based on illegal signage and other issues in contravention of their Code of Practice. Would they lean on VCS to withdraw, do you think?
    • Mother and father worked here and then went to SA in about 1978 returning to UK in about 1996 and worked here until 2016 when her husband died at age 66.  He was still working at the time.  She then went to live with daughter in SA.  Mother only claims for her pension. 
    • Thanks, I owe the money, no issue with that, I will SAR the company.  If I need to just pay it and have the CCJ for a few years so be it.  Just thought I'd explore all options
    • By the way you wrote that post, i can see that you are as confused by the situation as someone reading it. Important advice must be not to pay for any flights etc, until they understand the situation fully. Those that have British passports could be entitled to receive UK benefits. However, nothing is that straightforward. The passport does guarantee anything. The daughter could be entitled to Universal Credit ( which includes housing) as a British passport holder, but this can only be confirmed when she has gone through the Habitual Residency test (HRT). So you will need to read about HRT for British passport holders returning to the UK. There will be requirements to provide information about why they are returning to the UK and what work searches have they done to find work on their return to the UK. In regard to the mother who has a British passport, you will be correct in presuming that no council is going to be helpful in paying for the care home fees immediately on arrival in the UK. When did the mother last live in the UK ? When did the mother last work in the UK ? British embassy in South Africa may be able to provide information and assist with applications ? Just getting on a plane, landing in the UK and expecting help to resolve their situation, would be a silly thing to do. I can see the mother ending up in an NHS hospital for a period, while people wondered how they were going to deal with the situation. Probably not the first to do this, but if the mother also has a South African passport, they could put her on a plane back to SA and then the Daughter would be a difficult situation. Embassy in South Africa must be first place of advice.
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Has the UK got the continuing-violations doctrine in its Laws.

 

I was under probation with a company and I raised H & S issues.

 

A lot of documented bullying occurred.

 

My employment was later terminated and the director cited the contract I signed in which they have the right to terminate my contract without reason.

 

Much later after the expiration of the time limit for the Tribunal I made a Subject Access Request.

 

I discovered that my line manager has been telling lies about me all this time.

 

And these are lies that are easily disputable (Like I was found sleeping while on that day I was over a 100miles away on training).

 

In a personal review list done six months after I left the manager still wrote down a lot of easily disputable lies.

 

Now if the UK has a continuing-violations doctrine or something similar, I will still be in time to take the case to the Tribunal.

 

Please I would be grateful for any advice.

 

 

Regards

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You can ask ther holder of your personal data to correct it or destroy it and if they dont make a complaint to the information Commissioners Office, who do have some powers but dislike using them. However, once they make a determination it becomes easier to use the courts to claim damages if these reviews have caused you a loss somehow.

Time for employment tribunal has undoubtedly passed and wouldnt be able to make a determination on your case anyway, their remit only covers certain actions and aspects of employment law.

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There is something similar. If the last act in a continuous course of conduct was within the limitation period, that can bring the whole course of conduct into the limitation period.

 

I don't see how that would help you in this situation though. The limitation period starts running from the last occurrence of the act you are complaining about, not from the date you discover it. There are a few exceptions to this but they are very narrow (e.g. fraud).

 

Apart from the limitation problem, I don't see what your underlying claim would be? Unfair dismissal requires 2 years service. If you can prove you were dismissed for whistleblowing that would get you around the 2 year service requirement though.


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Regarding Section 44 of the Employment Right Act 1996, does refusal to give reference amount to a detriment?

 

I know giving of reference isn't a legal right but if it has been given for others and I'm not given because I raised a Health and Safety concern. I feel that is detriment and fear of not getting a reference will prevent one from raising H & S concerns.

 

Please your advice

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In short, yes.

 

The longer answer would be that to be actionable you would need to be able to prove that your original H&S complaint was legitimate, that you have suffered a detriment (for example being unsuccessful in a job application due to the lack of a reference), and that the reason for failing to provide a reference was solely of substantially due to you having made the complaint.

 

Even if the reason for not providing a reference was not in retaliation for an earlier event, if it can be proven that it is normal practice for the employer to provide a reference, and where you suffer a detriment, then the employer could still be liable to a claim of discrimination or even a breach of contract where the matter of references is either written into the contract or implied through custom and practice


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Most employers only give a simple reference now anyway

 

That you worked for xyz employer and employed between xyz and xyz as a (Position) within the company

 

It is quite rare to get glowing references now as they are simply templated responses

 

If you have a Trade Union speak to them and get them to raise it through their health and safety rep and leave you out of the loop

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this all sounds a bit theoretical.

 

What is your actual situation, maybe we can help more?


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Even if the reason for not providing a reference was not in retaliation for an earlier event, if it can be proven that it is normal practice for the employer to provide a reference, and where you suffer a detriment, then the employer could still be liable to a claim of discrimination or even a breach of contract where the matter of references is either written into the contract or implied through custom and practice

 

Please I have two questions

 

1) For Claim of Discrimination, I thought you could only bring a claim for discrimination for one (or more) of the protected characteristics (age, sex etc).

 

2) For Breach of Contract do I not need to prove I suffered loss?

 

Thanks all you answers have given me greater clarity.

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If a company says that when you leave its employemtn it will give you a reference and then doesnt (but has given a reference for every other leaver) and you dont get the job you were after because of the lack of an employers reference then you have suffered a detriment due to this discrimination. The breach of contract allows for a remedy in the form of damages for that breach so you have to quantify that loss. This could be a loss of earnings or for any extra expense you have been put to in getting alternative references etc. Breach of contract claims for us lower mortals who arent members of the IoD is never a smooth road and the payouts notoriously paltry so always a very last resort

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I think the word Discrimination is being used inappropriately here which implies the wrong regulations.

 

To get anywhere with Discrimination it would have to be detrimental treatment to you (or someone else because of your) having one of the protected characteristics.

 

Without the above this is not discrimination but a Breach of Contract (If you could prove it)


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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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If a company says that when you leave its employemtn it will give you a reference and then doesnt (but has given a reference for every other leaver) and you dont get the job you were after because of the lack of an employers reference then you have suffered a detriment due to this discrimination

 

Agree with SabreSheep above - be very careful if using the word discrimination

 

Whilst the refusal to give a reference for one person but doing so for others is discriminatory in terms of the dictionary definition, the legal definition (for the purposes here) means that such treatment is not actionable unless the discrimination is due to Race, Religion, Sex, Age, Disability etc.

 

So, if the employer were saying (whether in so many words or not) that he was not prepared to give you a reference because you happen to be gay and he does not approve of gay people (or conversely if you were straight and the employer preferred to only employ gay people) then this would be unlawful discrimination. If however the refusal to give a reference was due to you having an offensive face, then this in itself would not be unlawful....

 

HOWEVER

 

If the employer habitually provided references but singled you out for punishment for not providing one then this COULD be a matter of a breach of contract - either because the contract specified that you would be provided with a reference, or because by their actions in always giving references to other leavers has implied a contractual term by custom and practice. In failing to give YOU a reference the employer may then cause a detriment as you MIGHT then be unable to secure suitable employment. IF that can be proven then the employer may well be liable for damages.

 

Please I have two questions

 

1) For Claim of Discrimination, I thought you could only bring a claim for discrimination for one (or more) of the protected characteristics (age, sex etc).

 

2) For Breach of Contract do I not need to prove I suffered loss?

[/Quote]

 

1. As above - yes, discrimination can only be the case where a protected characteristic is the cause of the employer's actions

 

2. You do not need to suffer loss for a breach of contract to exist, but you WOULD need to demonstrate loss for the employer to be liable for damages, so a letter explaining that your application was unsuccessful due to the lack of a reference would be a clincher, although a succession of unsuccessful applications for positions that you are suited to and qualified for might also be persuasive even if it is not spelled out in as many words that you would have been successful had you been provided with a reference.

 

As with any form of litigation, the more the evidence - circumstantial or actual - the greater the chance of success.

 

In terms of what you could do next - either take your chances and hope that you manage to gain employment without a reference, or put the employer on notice that you consider their actions a breach of contract for which you will hold them legally responsible for damages should their failure to provide any sort of reference cause you to miss out on securing another position.


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I think the relevant legislation here is indeed S44 Employment Rights Act - essentially, an employee has the right not to be subjected to any detriment by reason of a health and safety disclosure (in certain prescribed circumstances). I strongly suspect this also applies post termination. Therefore, the appropriate claim would fall under the statute rather than the general common principles of breach of contract.

 

I disagree with the above that a refusal to give a reference can amount to a breach of contract in itself (sorry!). It's settled law that there is no obligation to provide a reference and a refusal to do so will only usually be actionable on discrimination/detriment/legal victimisation grounds. Personally I have never seen a contract which contains the express right to a reference at the end of the relationship (save for where statutorily required, for example by the financial services industry or teaching profession), but maybe others have :)

 

Anyway, the point is that there could well be an actionable claim here. Worth seeking legal advice, I think.

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What has not been confirmed was if that Health and Safety concern that was raised was a valid concern??

 

And how can you substantiate the reason for failure to give a reference was a direct result of you raising a Health and Safety concern?

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Hi Guys,

 

Thanks for your help.

 

I have found out that Post-Termination detriment is actionable: Woodward vs Abbey National.

 

Once again thanks and please be on the look out as I will be asking more questions.

 

Regards

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Another case is: Onyango v Berkeley (t/a Berkeley Solicitors) UKEAT/0407/12

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Hello All,

 

I bringing a claim against my employer.

 

Not wanting to make minor mistakes and leave out certain things I spoke to someone and he advised that I make the statement "Reserved the Right to Amend" at the send of the Claim Form and that will give me some ability to add/remove minor details later.

 

Does anyone know anything about that?

 

Please any idea, clue and/or tip would be greatly appreciated

 

 

Thanks

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This sounds a bit like an urban legend to me. There is no such rule as far as I know.

 

You are generally speaking be permitted to make at least one amendment without a lot of fuss from anybody. This would be whether or not you've apparently reserve the right to amend – it doesn't make a lot of difference.

 

What you need to realise of course is that if you amend your claim then of course the defendant has definitely a right to amend their defence and of course this will add various delays.

 

If you want to amend the claim then the best thing you can do is to follow the link and read the advice that we give about applying for set-aside because broadly the same procedure should be followed.

 

I don't know if there are any particularly different ways of doing it when you are dealing with employment tribunals


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I think you're over thinking it :)

 

As long as your ET1 has the skeleton outline of what happened (with the key facts - not an endless list of everything as tribunals don't like that) along with a clear indication and summary of the claims you are intending to bring, that is sufficient for the purpose of the claim form.

 

The witness statement is where you put down everything you wish to rely on and that won't come for a while yet! They are usually due for exchange around a month to six weeks before the final hearing.

 

You can usually apply to make minor amendments to a claim form if they are necessary and will help the parties better prepare their cases - but what you won't be able to do is apply to amend a claim to add further claims if you are outside the usual three month time limit (unless the just and equitable/reasonably practicable extension provisions apply).

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I think you're over thinking it :)

 

.

 

Thanks, deep down I have always suspected that!

 

Is it ok to post an outline of what I have written here so that it could be critiqued?

 

Regards

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Thanks, deep down I have always suspected that!

 

Is it ok to post an outline of what I have written here so that it could be critiqued?

 

Regards

 

Yes, I would think so, as long as you don't identify yourself or the company you're taking action against.

 

HB


Illegitimi non carborundum

 

 

 

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Hi Everyone,

Basically my story is this:

I was employed as an assistant project manager on a construction site.

My duties includes H&S patrols

On the 3/11/2014 I noticed a subcontractor placed materials on the scaffolding walkway, I spoke to him several times and he failed to remove them that I was forced to email him.

I copied my line manager as it is the usual practice.

My line manager responded asking me to refrain from copying him in such emails and this is despite the fact that it is the usual practice and he (my LM) gave me the email in the 1st place.

Again as he had a lax attitude to H&S that i was forced to yellow card him (enforcement notice) on the 12/11/2014

I later found out that the Subcontractor is a friend with at least one of my directors in the Head Office.

A lot of documented things happened

My employment was terminated 13/2/2015 and I did nothing about it.

When I wasn’t getting good references from the company I made a Subject Access Request and found out a lot of lies were told about me.

These lies/detriments continues post termination.

I have found out that Post Termination detriments is actionable (Woodward vs Abbey National).

Below is my Particular of Claim/Statement of Claim.

Please critique and feel free to be brutal as I know my opponents will be very brutal

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Noticing a lax and careless attitude to the Health and Safety Law by a Subcontractor Supervisor (), I was forced to email him to let him know that he was breaking the Law and Site Rules (03-11-2014)

I began to suffer detriments

my line manager emailed me asking me to refrain from copying him in such emails despite the fact that it is usual practice to copy every member of the Construction Team in such emails but, most importantly, he gave me the Supervisor’s email address and asked me to copy him in (03-11-2014)

I got excluded from other emails sent by members of the construction team (03-11-2014)

I was forced to write to the Subcontractor Supervisor, again, to request that he adhere strictly to the Health and Safety Law as he was still floating it (10-11-2014)

The Supervisor continue to show disregard for Health & Safety issues that I was forced to take appropriate steps to protect others (12-11-2014)

The detriments intensified:

I had a bogus Verbal Warning letter placed on my File (12-11-2014). It is bogus as it was never issued

I had malicious false statements placed on my File Note (13-11-2014). One was that I was found sleeping on a day that I was on a training course 50 miles away

The site secretary sent an email titled Labourers to everyone in the Construction team, my line manager responded to it and excluded me from the response (13-11-2014)

A bogus lecture/meeting was arranged by the Regional Health and Safety Manager (a friend/acquaintance of the director of the Subcontractor). I was seriously humiliated during the lecture/meeting (14-11-2014)

I got cold shouldered, put down and unfairly criticized by other members of the construction team.

I was physically attacked and threatened with further acts of violence (04-12-2014)

I was given menial jobs to do (14-01-2015)

Asked to close out items in which I was never involved with initially (06-02-2015)

My employment was terminated on false allegations and without following the due process (13-02-2015)

The detriments continue post termination of contract.

My office recycling effort was finally sabotaged and I was blamed for it (20-04-2015)

my line manager refused to provide reference to a company I was now working for (23-06-2015)

Malicious false statements were placed in my Personnel Review File (12-08-2015)

Persistent refusal to release my Personal Data despite a Subject Access Request (09-10-2015)

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Hello again.

 

Is there any chance you could put some paragraphs or spacing into your posts please?

 

It will make them easier to understand for the advisers here. :)

 

HB


Illegitimi non carborundum

 

 

 

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Practically speaking, you will need to retain as much evidence as you can to avoid a situation where it is effectively your word against theirs. You also need to be prepared to demonstrate a causal link between your disclosure (if it is found to be a qualifying disclosure - you need to explain in the claim form In clear terms how the qualifying criteria for a protected disclosure have been met) and the subsequent detrimental treatment.

 

Legally speaking and to better protect your position, you need to make it clear that you are arguing that there has been a series of continuing detrimental acts under s47B ERA 1996, extended by S48(3)(b), which will hopefully serve to bring all of the acts within time.

 

It's unlikely that you will be able to claim for the dismissal itself (which is a separate head of claim) as it happened so long ago and out of the three month time limit.

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Sometimes people (including some solicitors) do say things like 'We reserve the right to amend this particulars of claim if required'. This is nonsense really. In the context of court proceedings, the CPR states that you need the court's permission or the permission of the other side to amend a particulars of claim which has been served - read https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17#17.1. Including the words suggested to you does not change this.

 

If you want to amend your particulars, it is considered good conduct to approach the other side to seek their permission before making an application to court. Agreeing to let you amend the particulars doesn't mean the other side agrees with your claim, it just means they agree to the amendment to make it clear to the court what you are claiming for.

 

Please critique and feel free to be brutal as I know my opponents will be very brutal

The purpose of the particulars of claim is to clearly explain to the court and your opponent what has happened, what legal claim you are making and what you want the court to do. To be honest, your particulars just reads like a list of random complaints. You haven't stated what legal claims you are actually making or what you want the judge to do about it.

 

These lies/detriments continues post termination.

After reading your story, it sounds like the claim you actually want to make is a claim for compensation due to negative references which have been provided to other employers. To be legally precise, it sounds like you want to make a claim for breach of s47B of the Employment Rights Act 1996 which provides that a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

 

This sort of claim would require you to demonstrate what your protected disclosure was (i.e. that you reported a genuine H+S issue), the detriment you have been subjected to (negative references / bad things on your file) and why you believe the two things are linked. You would also need to show how the detriment has caused you financial loss (presumably you lost out on other jobs?) and what you want the court to do as a result (presumably award you compensation? in which case you would need to have a go at calculating how much you have lost out financially). That is what would need to go into your particulars - leave out the irrelevant stuff.

 

However whistleblowing claims under s47B can only be heard by an Employment Tribunal, not by the courts. Also, you need to bring your claim within 3 months from the act you are complaining about (presumably the date of the bad reference). If there were a series of references, you might be fine if the most recent one was in the last 3 months.

 

The other option would be to make a defamation claim in court. But defamation claims can only go to the High Court - but defamation claims are expensive and you would be liable for the other side's legal costs if you lose. I don't recommend it.


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