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Giantpanda

Response to ET3 - affirmed breach by working notice

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Today I received the respondent's (employer's)  ET3 and once again would appreciate some advice.  My employer states that because I worked three months notice I have waived/affirmed any alleged breach of contract.  

 

In my ET1 form I explained my reasons for working notice as follows:

 

a) To limit the impact of my leaving on team members - I have worked with the same two colleagues for over 7 years during which we faced many obstacles together including the ongoing challenge of keeping an increasing backlog at manageable levels despite being significantly under resourced. With 5 new staff due to start in early 2019 I felt I could hold on until October to help my team  (I resigned end of July and my last day of employment was 31st October 2018). 

 

b) My team was remotely managed and the interaction with our managers (the respondents) was relatively predictable and I knew the next significant flash point was likely to occur at end of October i.e. at Mid Year Review.

 

c) To allow extra time for my line manager to agree my unused leave total - I correctly anticipated that my line manager would fail to agree my unpaid leave within the 5 working days prescribed by HR policy.

 

Do you think the above could reasonably address the respondents assertion?  Are you aware of any precedents I could quote?

 

 

 

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It helps if you keep to one thread for all posts - people can miss stuff.

 

And no - legally speaking there is no good reason whatever for working three months notice when attempting to claim unfair constructive dismissal. You appear to have missed the entire point of constructive unfair dismissal - that the employers breach must be so substantial and serious that it gives one no alternative other than to resign unilaterally, either as a direct response to a very serious incident (such as an assault), or in immediate response to an action of the employer that goes to the root of the contract and where the employers whole grievance procedure had been exhausted. It's foundation is "no alternative". If you continue to work for them for  three months that undermines any claim. 

 

So I'm afraid that there are no precedents to quote - what you did is entirely inconsistent with your claim; and, frankly, if there was such a serious breach, stretching credibility beyond its limits. The tribunal will simply not believe that your employer was such a b......d that you had no alternative but to leave without a job to go to, but you continued to work there for three months because you are a selfless person! In all honesty, having seen what is a winning position for constructive dismissal, I've never seen a case where the claimant could tolerate another minute, never mind three months.

 

Your unused leave could have been resolved after you left - you did not need to be employed by them to argue that, certainly not for three months. That would simply be an add on claim if not resolved. Everything else is, bluntly, unbelievable. You probably are telling the truth - there's no good reason to lie here because it does you no benefit. But I can see how the lawyer will spin this - and what the tribunal will very likely believe- that you are making a frivolous claim. Truth isn't always credible. This one isn't! 

 

You will no doubt recall that in your last posts I was careful to say that I wasn't  commenting on the chances of winning constructive unfair dismissal. The bar is set high - and the odds of winning are very, very low. Even with a strong case. Without even knowing what your alleged breach was, or the context, I can tell you that you have shot yourself in the foot. Your chances went through the floor when you continued working for them for three months. You will need a much stronger argument, and it's hard to come up with a different one now - you wrote it in your claim! Any change now won't be believed. 

 

If they make you an economic settlement offer, think carefully before refusing to talk money. It may be the only money you see. 

 

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Oh dear I will probably withdraw my claim given it is unlikely to succeed. Thank you for the reality check.

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No. Don't do that! Sit it out. Provided you do not ignore any direction (or heavy hint) by a judge, then stick to your story no matter how weak. You can withdraw at any time - even on the day. The employer might make you an economic offer - it may not be a lot, but it's better than nothing. If the judge throws it out, then you have lost nothing. Judges prefer to hear the case then you lose - they will throw out a no hope case, but might let you proceed if it isn't a lost cause.

 

At this stage, having submitted, you may as well see it through, at least a bit further. I don't really approve of advising people to submit no hope cases in the hope of a pay out. It damages the credibility of the tribunal system. But you have gone this far without realising, so nothing is lost by hanging around a bit longer. 

 

What, exactly, did the employer do to make you decide to resign? Don't fret about them "maybe" reading this - employers and their lawyers have better things to do than reading anonymous websites in case they see someone they know. And tribunals require disclosure so there are no secrets.

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Sangie5952

 

Thanks once again for responding so quickly.  As requested here is some, but not all, of the issues:

 

My employer committed a series of breaches between 2015 - 2018 including:

 

In 2015 Failed to issue my contract within 2 months

 

2015 - recruitment manager reneged on a verbal agreement to review my pay retrospectively. I started at the lowest pay band despite having 9 years previous relevant experience 5 of which I worked as a contractor for the same organisation

 

2016-2017 - Denied me overtime as a part-timer on the basis that I needed to exceed the FTE hours (37 hrs) despite my contract stating  premium rates at weekend applied (irrespective of whether it was  F/T or P/T staff).  Note: A new manager in 2017 told me that when she was a part timer she got premium rates at the weekend and consequently she allowed me to work weekends at premium rates.

 

2016 – I was initially denied an allowance and extra leave (special leave and annual) to which I was entitled.  I initially asked HR for these but was told I was not entitled and my t&Cs were non negotiable.  I managed to prove from online guidance that I was entitled, after which the allowance and leave were applied retrospectively.

 

2016-2018 – Denied me formal ‘flexi-time’ arrangements despite the job advert stating job available as ‘flexible working’ in addition to F/T, P/T and job share.  It was subsequently introduced in 2017 after I complained to my CSO again.

 

2017 -2018 – Managers failed to follow performance policy and procedures.  I was singled out by my line manager for a ‘partially met’ marking for my objectives.  This marking is for staff not meeting the required standards. She proposed this even though she refused to look at my evidence of performance and external feedback.   A few weeks later when I challenged her quoting relevant guidance she did a U-turn and later marked me as met against all objectives.  I knew I had strong evidence which was commensurate with my previous years performance in which I had been marked 'outstanding' . Note: it was not until the last 2 weeks of the appraisal year that my line manager agreed to accept evidence and feedback after which she had no choice but to award me exceeded. Unfortunately this was too late for me to be considered for an 'In Year Award'.

 

I raised a grievance against both my Line Manager and CSO in January 2018.  Six months later I had still not been invited for an interview despite me emailing the Decision Manager (DM) in April 2018  stating that my situation had become untenable. I was not kept updated about delays.   I again emailed her in June saying she was not taking my grievance seriously.  I resigned after  six months into my grievance (29/07/2018) at which point I had become aware that my line manager had been promoted and the CSO (who was managed by the DM) had taken on more staff management.  It was also apparent that the DM would not be interviewing any individuals who could corroborate my claims despite being aware that some would have pertinent information.  A colleague had also submitted a grievance against the same individuals in April 2018, later withdrawn. The latter was not referenced in the Decision Manager's investigation. Note: The DM was both responsible for investigating the grievance and deciding on its outcome and she also managed my current and previous CSOs.

 

The DM did not uphold my grievance (12/09/2018). The grievance investigation report contained 13 paragraphs only 1 of which related to the grievance. The remaining 12 were subjective and judgemental comments about me.  There were no comments criticising the line manager or CSO despite evidence which proved their shortcomings.

 

I was offered an interview by the DM two days after submitting my resignation but I declined citing the above reasons.  I appealed.  The appeal manager also took six months to make his decision to not uphold my appeal. Note: He was only investigating the way the grievance was handled not re-investigating the grievance.

 

And as you are aware while I was working my notice in October my Line Manager informed the team, including me, that she had nominated us for a team award. My colleagues got their awards at the end of March but it transpires my line manager did not nominate me.

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Hi.

 

I expect Sangie will be back to advise you. Could I just ask if you have written proof of everything you say your ex-employer did please?

 

HB


Illegitimi non carborundum

 

 

 

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Ok. Sorry.  The employer / managers may not be very good, but there is no breach here that I can see that justifies constructive dismissal. For starters, almost everything is out of time for a claim! You can't just roll all your complaints into one and only count the last one! 

 

Failed to issue your contact in time? Did did so later? Issue resolved - you can't include it. Not an fundamental breach anyway - in law it's a minor slip up.

 

Denied overtime rates - out of time. You can't include it.

 

Denied allowance and extra leave? You objected, and won. Matter closed - you can't include it.

 

Denied flexitime? There's no right to it, it's within the power of the employer to refuse. So no fundamental breach. 

 

Didn't like your appraisal scoring? Sorry, you did the right thing by arguing, but... There is no right in law on this. Performance is up to the employer and a tribunal will never intervene in performance issues. 

 

And you are going to intensely dislike what I am about to say, so sit down.... You have no right in law to have a grievance upheld. You may not like the comments made or the decision, but unless they are incorrect in law, then the employer can find whatever they like - a tribunal will not interfere with that judgment. And it is technically correct - an appeal can simply consider whether the process was correctly carried out. It doesn't have to reconsider the outcome.

 

I'm really sorry. I always try to remain impartial - there's two sides to every story, and after years of doing this I can usually guess both sides! I can see that you have had an enormous clash of culture with the employing organisation / managers. That isn't to say either you or they are "right". Right is a matter of perspective, and irrelevant now anyway. But there is a big difference between something being "fair" and something being "lawful". I'm not seeing unlawful here at all. And certainly not enough to warrant a claim of constructive unfair dismissal.

 

As I said, I'd be tempted to hang in there as long as doing that presents no threat to you, but definitely back off at a fast rate of the tribunal even vaguely hints at it. And if offered money to go away, maybe haggle a bit, but do not turn down anything. Bird in the hand, and so on???

 

 

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Thanks sangie5952

 

Appreciate the honesty.  I would be concerned that the tribunal might view my claim as frivolous or malicious and order me to pay costs.  Given that the costs may include air fares for witnesses etc I am loathe to risk it. Time for me to let go of the anger and move on methinks...  Life goes on.

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Thanks to all for your help and swift response.  As you can see from my response to sangie5952 I am going to withdraw.  

 

(In response to Honeybee I have proof of everything relating to the grievance about performance and the appeal but only limited evidence to support the other issues).

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48 minutes ago, Giantpanda said:

Thanks sangie5952

 

Appreciate the honesty.  I would be concerned that the tribunal might view my claim as frivolous or malicious and order me to pay costs.  Given that the costs may include air fares for witnesses etc I am loathe to risk it. Time for me to let go of the anger and move on methinks...  Life goes on.

You will not be ordered to pay costs unless you are warned and ignore the warning. It's highly unlikely, however, that a tribunal would approve air fares for witnesses anyway without some substantial cause. The rule is that they don't pay travel from overseas. So if you want people from overseas as witnesses, you will have to pay them yourself anyway. 

 

Give yourself some credit. Most people have either called me names, accused me of heinous acts, or reported me for being horrible to them by this stage. You're doing a remarkable job of staying calm 😁

 

I still think that you should give it some time and see what happens. I doubt you'll get far, but a pay off is cheaper than a tribunal for the employer. But equally, you must do what is best for you. 

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Thanks again  sangie5952.  Remember you warned me to sit down so I didn't have far to fall. I will 'sleep on it' maybe for a few weeks, so a long snooze. The grievance feels toxic making it difficult to be objective. Also I think the respondents are unlikely to make an offer to settle as they are part of a large public body and I believe their default position is not to admit liability.

 

I wouldn't dream of calling you names. It is clear you are giving generously of your time and experience. I only wish I had access to this kind of advice sooner. 

 

Incidentally when I referred to the costs of witnesses I meant witnesses called by the respondents on their behalf. I was worried about having to pay for their air fares and accommodation if the tribunal awarded them costs. However given the strength of my case I realise it is unlikely they would need to call witnesses.

 

Again many thanks.

 

 

 

 

 

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You could have had access to my advice earlier - if you'd joined our large union that organises in the public sector! However, it does depend... Policies vary. If they have their own internal legal resource who can confidently secure the case, then they may not make an offer. If they are insured (and few are these days) or paying for advice, they'll likely be advised to make an offer. That's usually the case as forit's cheaper  them. 

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Hi Sangie5952.

 

Yes I wish I had belonged to a union.  In the job immediately before my last one I was a contractor placed into a job via a recruitment agency so union membership didn't cross my radar.  Immediately before that job I worked for 22 years in an OGD where, for reasons best not mentioned, I was unable to join a union.  So I suppose joining a union was not in my mind.  That said in the early 1980s I did belong to a union when I worked for another OGD and I even protested on the picket line.  Am showing my age now methinks.

 

My last employer is under the umbrella of a very large government department so probably has access to a legal team.  In any event the employer has engaged a solicitor to represent them who is local to where I live (and worked). So I am not holding my breath.  Looks like 'bread and scrape' then for the remainder of the year while I try to find another job.

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If they've engaged a local solicitor, they probably don't have internal resources. Lawyers in the public sector generally specialise in other agreed of law - they'd need an employment specialist and may not have one on the books. So it's costing them. Just sit back, wait. You have nothing to lose. As I said, if you were in danger of a costs order, you'll be warned by the judge. So it's costing you nothing but a bit of time to keep this going a while longer. If it gets in the way of your life, eating up time, then rethink it. But if not, go with the flow and see what happens.

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Thanks sangie5952. As I currently have nothing to lose I will indeed "go with the flow" but if there is any hint of a sunami I will head my pedalo back to shore as quickly as I can. Fingers x'd. Thanks again.

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You are welcome. Come back if you need more advice. Join UNITE! 

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Thanks and I will certainly consider joining UNITE in my next job.

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Hello again

 

I have started compiling my list of disclosures for the respondent in my ET claim and am also thinking about what I need from my employer (respondent).

 

I would be grateful for some advice on the procedure for requesting information from a respondent relating to a third party.  The background is that while my grievance was being investigated my colleague, Mrs X, also submitted a grievance against the respondent.  The submission was made three months after mine but withdrawn after a month when she could see that my grievance was not making any progress.  She told me she had cited many of the same issues that I had included in my grievance. Note:  She wasn’t disclosing anything I didn’t already know as originally all three members of our team had drafted a collective grievance against our managers but my colleagues changed their minds for fear of reprisals and the belief that it would only be given ‘lip service’.  The collective grievance was never submitted.

 

Mrs X’s grievance was not investigated and she was not interviewed during the investigation of my grievance.  The investigator did not reference any other complaints made against the respondents in her report. 

I believe Mrs X’s grievance could add weight to my claims particularly in respect of my allegation that the F/T member of staff was offered a promotion opportunity which the P/T staff were not.

What is the procedure for obtaining this information.  Do I make a request under the FOIA by sending a letter to the respondent’s solicitor.   Should I get Mrs X to give her permission and attach it to said letter?

If Mrs X is willing to give me a copy of her grievance together with a letter giving me her permission would it be acceptable to include this in the bundle?  I would not want to make life difficult for Mrs X who still works for the respondent and for that reason I would not call her as a witness.  Given that her grievance was submitted to the respondents do they now own this information instead of Mrs X?

 

I can find lots of information about how to request information about me from my employer but am confused about how to request information my colleague gave to the respondent.  Grateful for any input.  Thank you.

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Hello again

 

I posted this earlier today under my previous posts but think I should have posted my comments here as a new topic.  Apologies for any confusion or duplication.

 

I have started compiling my list of disclosures for the respondent in my ET claim and am also thinking about what I need from my employer (respondent).

 

I would be grateful for some advice on the procedure for requesting information from a respondent relating to a third party.  The background is that while my grievance was being investigated my colleague, Mrs X, also submitted a grievance against the respondent.  The submission was made three months after mine but withdrawn after a month when she could see that my grievance was not making any progress.  She told me she had cited many of the same issues that I had included in my grievance. Note:  She wasn’t disclosing anything I didn’t already know as originally all three members of our team had drafted a collective grievance against our managers but my colleagues changed their minds for fear of reprisals and the belief that it would only be given ‘lip service’.  The collective grievance was never submitted.

 

Mrs X’s grievance was not investigated and she was not interviewed during the investigation of my grievance.  The investigator did not reference any other complaints made against the respondents in her report. 

 

I believe Mrs X’s grievance could add weight to my claims particularly in respect of my allegation that the F/T member of staff was offered a promotion opportunity which the P/T staff were not.

 

What is the procedure for obtaining this information.  Do I make a request under the FOIA by sending a letter to the respondent’s solicitor?  Should I get Mrs X to give her permission and attach it to said letter?

 

If Mrs X is willing to give me a copy of her grievance together with a letter giving me her permission would it be acceptable to include this in the bundle?  I would not want to make life difficult for Mrs X who still works for the respondent and for that reason I would not call her as a witness.  Given that her grievance was submitted to the respondents do they now own this information instead of Mrs X?

 

I can find lots of information about how to request information about me from my employer but am confused about how to request information my colleague gave to the respondent.  Grateful for any input.  Thank you.

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Hi.

 

I've merged your threads, it's much easier for the advisers if you keep all the information together.

 

HB


Illegitimi non carborundum

 

 

 

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The only thing this will achieve is getting Ms X sacked. 

 

Someone else's grievance is not evidence of your grievance. Someone else's grievance which was withdrawn isn't evidence of anything at all - it never happened. Nobody "owns it" because it never happened. If it had existed, it would have had no import at all unless Ms X appeared as a witness against her current employer, at which point they would, in any case, to her apart at the tribunal for presenting facts not in evidence (and then look for the first chance to sack her, which would probably be the next day). And toy have no right to information from our about a third party who had nothing to do with your case. 

 

The short version - forget it. It wouldn't help you at all, but it could get her sacked.

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Thanks sangie5952 particularly for such a quick response.  I won't be pursuing this one. 

 

 

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