Employment law can anyone help?

[pinkerton_angel]

Hi Hayley,

I would say that walking out of his job after being told that was quite reasonable and in employment law, he is entitled to do this as it is seen as acting in the heat of the moment after being driven to that point! The company cannot reasonably take this action as his resignation, or to discipline him - was it in any way a dangerous situation or caused them any loss because of him walking out?? Have a look at the case law Kwik Fit (GB) Ltd v Lineham (1992) the tribunal found that where there was an ambiguous resignation, the onus was on the employer to establish the true intention of the employee. This was quite similar in that the employee walked out in the heat of the moment, following intended disc action. They actually found in favour of the employee in this case, saying he had been unfairly dismissed.

 

I would definitely suggest going ahead with the grievance and making it clear that he had felt forced to resign because of what had happened.

 

All the best, keep us updated!!

pinky xx

[Chris_w]

The law for industrial tribunal's has changed recently look again on the ACAS website under (dispute resolution). If you don't stick to most of this your tribunal request will be rejected. from what I've read youv'e more or less satisfied most of the requirements also go to your local CAB

[Jeanjaquessmoothie]

Holidays, my understanding:

 

Example: Mr A gets 20 days holiday a year, accruing at the rate of 1.66 days per month. You can take the holiday at any point during the year, as long as it is agreed with your manager etc.

 

If you leave and you have had more than your entitilement, you have to pay back the balance, or, vice versa, if you leave and you've not taken enough holiday the company has to pay you the shortfall.

[ICY]

If you leave and you have had more than your entitilement, you have to pay back the balance, or, vice versa, if you leave and you've not taken enough holiday the company has to pay you the shortfall.

Correct

[Prouty99]

The tribunal will probably take a dim view of anyone applying to tribunal who hasn't been through a grievance procedure first.

 

Even though you have since quit the company will still testify saying that they offered you the chance to sort it out in grievance and you didnt take up their offer.

 

The rules for tribunal are that from the point of you entering a grievance you have three months to complete the process and if you still havent made agreement or arent happy with the outcome then you can apply for tribunal (the tribunal will give you up to six months to resolve through grievance if the process is still trying to be resolved,but six months is the maximum time. after this your case will be counted out.

 

As for the holidays you should get 20 days minimum from day one, this accruing holidays every month has no basis in law as the law changed in 1999 so that anyone will get 20 days from the moment they sign on the dotted line.

 

You could try to screw them for constructive dismissal but this in my opinion wont be a strong case unless you were bullied victimised or harrassed until you could take no more.

 

With the warning the company have no leg to stand on, how can a disciplinary hearing take place if you arent present ? This flies in the face of the employment relations act approved code of practice on discipline and grievance procedure for a start....

 

Get in touch with a solicitor for free advice, but my hunch is he or she will tell you the same things.

 

Trust me, i am a senior union convener and have represented hundreds of people in cases like this over the years and have been through the tribunal process many times against the biggest company in the world who made more profit than Austria last year. They may be a global beast, but this is England and they cannot escape the law.

 

Prouty

[Chris_w]

This thread is open in General consumer issues as well and look like it's continuing there

[Chris_w]

Hayley your thread is open in two forums General Knowledge and General consumer issues youv'e had a few replies in the other forum you might like to ask a mod if they could be merged.

[Chris_w]

I've just finishid reading through your thread. Most of the advice so far is sound. However I've just had a lecture from one of my union lawyers regarding dispute resolution and his advice is to get yourself an employment lawyer, as it is a specialist subject and some tribunals have fallen down with the lawyer having insufitient knowledge. read dispute resolution on the ACAS website also look at other union (eg:Unite) websites some will have advice. Also try the DTI website you should find some info there as well

[cf1958]

Check your house insurance policy for Legal cover, some cover you for Employment issues and Industrial Tribunals, you could then use a Solicitor to handle it.

As with all claims they will only pursue the matter if there is a more than 50% chance of winning.

My house insurance gives us cover of up to £50,000.

[hayley]

The tribunal will probably take a dim view of anyone applying to tribunal who hasn't been through a grievance procedure first.

 

Even though you have since quit the company will still testify saying that they offered you the chance to sort it out in grievance and you didnt take up their offer.

 

The rules for tribunal are that from the point of you entering a grievance you have three months to complete the process and if you still havent made agreement or arent happy with the outcome then you can apply for tribunal (the tribunal will give you up to six months to resolve through grievance if the process is still trying to be resolved,but six months is the maximum time. after this your case will be counted out.

 

As for the holidays you should get 20 days minimum from day one, this accruing holidays every month has no basis in law as the law changed in 1999 so that anyone will get 20 days from the moment they sign on the dotted line.

 

You could try to screw them for constructive dismissal but this in my opinion wont be a strong case unless you were bullied victimised or harrassed until you could take no more.

 

With the warning the company have no leg to stand on, how can a disciplinary hearing take place if you arent present ? This flies in the face of the employment relations act approved code of practice on discipline and grievance procedure for a start....

 

Get in touch with a solicitor for free advice, but my hunch is he or she will tell you the same things.

 

Trust me, i am a senior union convener and have represented hundreds of people in cases like this over the years and have been through the tribunal process many times against the biggest company in the world who made more profit than Austria last year. They may be a global beast, but this is England and they cannot escape the law.

 

Prouty

 

Hi Prouty

 

Thanks for your advice, my husband has actually gone through the grievance procedure and had a grievance meeting and a grievance appeal hearing and nothing has been sorted out. They have offered him his job back but he has a new job now and this is not the first time this has happened to him they do it every year, so he doesn't want them to get away with it again. We have contacted our house insurance but need to wait for them to look over everything before they will let us know if they will take it on of not.

 

We were advised by ACAS that following the grievance procedure if nothing was resolved then take them to an Industial Tribunal for Constructive Dismissal but as you have said we would not have a strong enough case so what do you suggest?

 

Cheers

Hayley

 

P.S I am going to ask a mod to merge the two threads now!!

[hayley]

Hayley your thread is open in two forums General Knowledge and General consumer issues youv'e had a few replies in the other forum you might like to ask a mod if they could be merged.

 

Thanks Chris, i have just contacted a mod to ask.

[Prouty99]

Hi Prouty

 

Thanks for your advice, my husband has actually gone through the grievance procedure and had a grievance meeting and a grievance appeal hearing and nothing has been sorted out. They have offered him his job back but he has a new job now and this is not the first time this has happened to him they do it every year, so he doesn't want them to get away with it again. We have contacted our house insurance but need to wait for them to look over everything before they will let us know if they will take it on of not.

 

We were advised by ACAS that following the grievance procedure if nothing was resolved then take them to an Industial Tribunal for Constructive Dismissal but as you have said we would not have a strong enough case so what do you suggest?

 

Cheers

Hayley

 

P.S I am going to ask a mod to merge the two threads now!!

 

After reading back you said in one correspondence that the company had admitted that it authorised the holiday, if this is the case then follow through with the grievance procedure and any hearings. Sod your onsite union rep he sounds useless, send a letter to the company saying that you want to be represented by the regional union officer or the branch secretary (i would go for the regional officer as they usually have more experience)

 

Go through the motions (always bear in mind that grievance procedure is just a game that we must play in order to get to tribunal)

 

If the union are willing to take the issue to tribunal and support the case then in my experience i know for sure that unions are a business like any other, and they will not take on a tribunal case unless there is a 50% + chance of winning before they apply to tribunal. If they have already said they are willing to support you through the process then that is a concrete sign that on balance of probability you will win.

 

Heres where i get all Zen about the trade union movement;

 

Unions are so removed from the days of Arthur Scargill you wouldnt believe it. Ok admittedly your union reps on the ground are only one step away from Arthur Scargill, but the higher you go in the union the more likely you are to meet people in pinstripe suits with laptops and briefcases.

 

They are a cash generating business just like the company, they are just as sensitive to bad PR as the company, they are just as prone to internal politics as the company,and they can be just as incompetent as the company.

 

The only difference between a corporation and a trade union is that they wear a different coloured hat.

 

Take heed of this.

 

Go to tribunal with the unions money and the unions political mechanism to support you, and use this to beat the company into an out of court settlement.

 

Manipulate them both for your own ends because the most important person in all of this is your husband

[hayley]

Hi Prouty

 

I dont know whether i am confusing you sorry, i do it all the time. My husband is not in a union. He has been through all the grievance procedures and still have had no luck, they have only offered him his job back. I telephoned my house insurance as i have legal cover and that is who i am waiting for with regards to representation.

 

Hayley

[Prouty99]

Hi Prouty

 

I dont know whether i am confusing you sorry, i do it all the time. My husband is not in a union. He has been through all the grievance procedures and still have had no luck, they have only offered him his job back. I telephoned my house insurance as i have legal cover and that is who i am waiting for with regards to representation.

 

Hayley

 

Hi Hayley,

 

Sorry,its just me going off in a rant in the last post, if he isn't in a union but you are still covered by house insurance for your legal brief then you have a choice;

 

1) Follow through with the legal advice whatever it may be. If he/she advises that they are prepared to take the case then go with it (as i said earlier about the 50%+1 probability this applies to anyone who considers taking on your case) If they take it on then go for it.

 

2) Walk away and learn from the experience.

 

Just as an aside, dont be worried that your tribunal claim may be seen as 'vexatious' and may be thrown out because of this, the tribunal panel will usually look at the wider picture and see this case as having implications for others should a message not be sent out to this company. This isn't just about your hubby its about those who may also suffer in a similar way.

 

I think the outcome will be the old chestnut seen on the bank charge forums 'a good will gesture' paid out of court in settlement probably on the tribunal steps as you approach the courtroom door. Either this or should you walk through the door you will probably see the same judgement plus damages for hurt feelings etc, plus a stern rap on the knuckles for the company.

 

Either way Hayley i think we are both wise enough to admit that whatever the outcome the company will walk out of the courtroom and do exactly the same thing to someone else next month....

 

I hope you win and you have my best wishes.

 

Prouty

[Chris_w]

Prouty is right about the outcome of the tribunal if there is one. they won't want to go in just in case!!!!

[cf1958]

Hi Hayley

 

Did you have 2 threads and they have been merged together, i just read through them all again and it seems I advised the house insurance Legal cover, when someone had already suggested that.

 

Am I losing my marbles or have the threads been merged if not I must apologise for wasting your time.

 

Good luck to your partner.

[hayley]

Thank you so much for your advice. If you knew half at what goes on you would not belive and it is a very well known company and yes they will continue to break the law, i just hope that they learn by this experience but i very much doubt it. A friend of ours also works for the same company and we were actually going on holidays with his wife and him at the same time, they also refused to pay him his holiday pay and he has been there 13 years.

 

I will keep you informed.

 

Thanks again

 

Hayley

[hayley]

Hi Hayley

 

Did you have 2 threads and they have been merged together, i just read through them all again and it seems I advised the house insurance Legal cover, when someone had already suggested that.

 

Am I losing my marbles or have the threads been merged if not I must apologise for wasting your time.

 

Good luck to your partner.

 

You haven't wasted my time i am extremely grateful for all advice given. Thank you