Can they even do this?

[GlasweJen]

I got paid! Holiday entitlement and notice period was all there as far as I can tell but I still don't have a payslip for the last 3 months.

 

What with the postal strike will it look better for me if i extend the deadline or should I stick to 14 days?

[Yorki]

I'd say extend it because it's not their fault Royal Mail are striking.

 

And good for you, they probably were expecting you to walk away and forget about it.

[GlasweJen]

see the nice person in me says extend it but I went from the end of July til the end of September for a letter so part of me thinks I should just tell them to feck off.

[cal37]

Yes Extend it, it will show a willingness on your part to be fair.

[GlasweJen]

It's a lovely autumn day here in Edinburgh despite the fact that hell just froze over. Got a nice smile from my postie today and in his hands was a 4 page letter from my old employer. Of course it's the exact opposite of what I wanted, lots of We deny, this isn't what happened etc etc but it's a non-computer generated reply.

 

The last line is the clincher

"The company denies that you have a claim for constructive dismissal and will vigorously defend the claim given the lack of evident that you have to support this claim"

 

So does that mean that if I produce evidence (which I have) then they'll change their tune? We shall see but they'll be seeing none of my evidence til I'm asked to fork it over by the court, there are statements from people who still work there and are scared for their jobs.

 

Also they're trying to deny that I'm disabled because I ticked the wrong box. I ticked no where it asks if i have a medical condition but then went on to explain my medical condition. I also talked to the managers about it, mentioned it at my interview and well it's bloody obvious that there's something not right with me.

[gemspan]

Hey Yorki!! Is that a picture of you in your avatar or is it Jon Bon Jovi? If its you, I'm coming to live in Yorkshire!!!!

 

Sorry, a bit off topic there!!! Stick to your guns Jen. They are trying to scare you. Of course they are going to deny it but if you have evidence then they will be found out!!!

 

Take care

Gemspan

[GlasweJen]

I got a letter from the tribunal, my claim has been upheld and passed to the tribunal here in Edinburgh, they have 28 days to defend.

[GlasweJen]

So I can't get their letter to post here and it's too long to type up but here's my reply, any advice on the points of law would be appreciated.

 

Dear Miss *******,

 

I refer you to your letter dated 12th October 2007. Firstly I would like to thank you for finally answering the questions I have been asking from *******. I would, however, like to draw your attention to the following matters:

 

Denial of the statutory right to a break away from the workstation

 

Although on paper I worked until 4am on Thursday mornings and 3.30 am on Friday mornings I was often expected to work until as late as 5am. This was addressed in the first paragraph of my initial grievance which you received on 30th July 2007 which you have yet to even acknowledge outside of covert meetings in the office at the ******* unit. This being the case I was indeed entitled to breaks away from my work station.

 

I also requested breaks to manage my health condition; this would be classed as a reasonable adjustment under the Disability Discrimination Act, instead I was told by ***** ****** to keep my medication in the cash office and to take it at the end of my shift. When I explained that it should be taken midway through I was told to take it before I came to work, in the end I had it with me in the cloakroom and found time in between serving to make sure I took it at the correct time.

 

I would also like to correct your statement:

 

 

“There have been two occasions within the last 6 month where by you have worked longer than 6 hours and have received a break away from your work station. These shifts that were longer than 6 hours were on the 11/04/2007 and the 22/06/2007.”

The statement is inaccurate and should instead read:

“There have been two occasions within the last 6 month where by you have been paid to work longer than 6 hours; these shifts were on the 11/04/2007 and the 22/06/2007.”

You should note that I was not given a break on those occasions, on the night of the 22/06/2007 myself and some members of the bar staff walked out of the club to the local shop to buy food without the permission of the management team as the food provided was cold, there was no one available to heat it for us and we would have no further opportunity to eat until 5am. That is the only occasion in my employ with ***** ****** where I had a full twenty minute break. On a few other occasions including the 11/04/2007 and 31/12/2006 I was offered a break away from the workstation but the breaks were less than the statutory twenty minutes long.

 

Unauthorised deduction of wages without express written consent:

 

***** ****** have my permission to deduct monies from my wages in the event that they should need to account for stock or cash deficits and to pay for items of uniform only, this is clear from your own terms and conditions. At no point did I ever give******** ****** to underpay me by half an hour to forty five minutes per shift, these were the deductions to which I was referring and which I believe were unlawful.

 

Inaccurate dates on Payslips

 

At no point did I allege that the inaccurate dates on my pay slips were unlawful. I will, however, point out that I have had to use older payslips when corresponding with the Department of Work and Pensions with regard to Tax Credits as the date on my payslip had yet to pass. ***** should perhaps be instructed to look into this as a matter of urgency. I have also still not received my last two payslips or indeed my P45 document; you are legally obliged to provide me with these. I will also remind you that due to problems with the computer system there was no access to ****** (the intranet site) for a period of several months and that we were not given any break time that we could use to access the intranet. There were also problems with accessing ******* remotely from a computer outside of the ******* network since I began my employ at ****** *******.

 

No Health Questionnaire

 

Further to your point regarding the company’s health and safety policy and would welcome your comments on the Working Time Regulations which I’ve pasted here for your reference.

“Health assessment and transfer of night workers to day work

7. - (1) An employer -

(a) shall not assign an adult worker to work which is to be undertaken during periods such that the worker will become a night worker unless -

(i) the employer has ensured that the worker will have the opportunity of a free health assessment before he takes up the assignment; or

 

(ii) the worker had a health assessment before being assigned to work to be undertaken during such periods on an earlier occasion, and the employer has no reason to believe that that assessment is no longer valid, and

(b) shall ensure that each night worker employed by him has the opportunity of a free health assessment at regular intervals of whatever duration may be appropriate in his case.”

 

My interpretation is that every worker should be assessed by the company before being assigned to work night shifts.

I also urge you to check the date on my application form as it is in actual fact the second such form submitted to ***** ****** as my initial application was lost, the form that you refer to was completed during my shift when I was still expected to be serving and so I do believe I could make such an error in ticking the wrong box. This should not invalidate my statement where I explain my health condition and it also does not discount the various conversations I’ve had with members of the management team with regard to my Neurocardiogenic Syncope and its treatment. It also does not discount my right under the disability discrimination act to have reasonable adjustments put in place to aid me in overcoming any problems I had at work that someone without Neurocardiogenic Syncope or dyslexia (which I later disclosed to ***** ****) would not incur.

Obviously my medical condition did become an issue at work as I was approached by ***** ****** during shift and questioned on my health in front of customers. I believe that at that point ******* ******* would have had an obligation to have had my health and suitability for night work assessed.

Refusal to provide written particulars of employment

I will direct you to the Employment Rights Act, this act sets down what is required in a written particular of employment. The act (paraphrased below) states:

1.An employee is entitled to a written statement of particulars of employment after 2 months

 

2.The statement must contain:

(a) the names of the employer and employee,

(b) the date when the employment began

© the scale or rate of remuneration or the method of calculating remuneration,

(d) the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals),

(e) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),

(f) any terms and conditions relating to holiday entitlement, sickness or incapacity and pensions

(g) the length of notice required to terminate the contract

(h) the title of the job which the employee is employed to do or a brief description of the work for which he is employed,

(i) either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer.

 

 

The documentation that I received from ********* does not meet the following requirements:

a)My name does not appear on any documents

b)There is no statement of the date my employment began

c)There is no rate of remuneration mentioned

d)There is no mention of my job title nor is there a description of what I was required to do.

As a result of these points I dispute that *******have provided me with adequate particulars of employment.

Refusal to provide adequate facility for the safe disposal of hazardous biological substances including blood

I refer to your assurance that managers and stewards are trained in the safe disposal of biological substances and would like to point out that it usually falls to the untrained bar, floor and cloakroom staff to do the actual cleaning of these substances. I have personally been asked to clean blood from various places in the nightclub on several occasions and was never provided with any training or even a pair of gloves for this purpose.

Refusal to allow a co-worker to witness a meeting regarding confidential information with Head Office

I vigorously oppose ******** stance that this was not a meeting but instead an “informal chat” as the meeting was closed to other members of staff and the terms of my contract were changed. I also deny that communications were to clarify the issues raised as neither you nor ******** seemed particularly interested in reconciling my problems and instead seemed intent on quieting me and intimidating me out of following the grievance route. Interestingly you have yet to furnish me with any written details from either meeting as promised by yourself on the 8th August 2007.

 

I am sorely disappointed with ********** allegations that I have made these complaints without adequate evidence to back them up. I have evidence in the form of several witness statements that can reinforce most of my points including *******'s policy to not pay us after a set time so that I and several other members of staff were indeed entitled to statutory rest breaks, your managers excuses when questioned over this and the fact that after the initial meeting with ****** ******. I was required to leave the premises at 3.30 am even on the occasions where the nightclub was still open for business at this time. My pay slips will of course prove that ******* ******* have consistently failed to record accurate dates for pay and tax purposes. I also kept a diary of the events leading up to my departure from the company, a short paragraph was written after the meetings when I was returned to my work station and of the conversation with **** ******* regarding my health. I have also kept a record of the telephone call informing me not to work my notice period and this shall be forwarded to the employment tribunal service in due course.

I will take this opportunity to confirm that I did not start employment tribunal proceedings lightly but will consider withdrawing my claim if a suitable agreement can be reached before the court date. I will remind you that as a result of the conduct of ***** ******* employees during the previous meetings or “informal chats” I will not be attending any meetings with yourselves without the presence of at least one member of my care team and, if I deem fit, my legal advisor. I will also remind you that all correspondence with me has to be in writing.

Yours sincerely,

 

Jenschnifer

[GlasweJen]

I've been hit with an order from the tribunal to furnish the company and the tribunal with evidence that I am disabled, what can I send?

 

I have written a letter to my GP asking for a report

I have a copy of my report from the Educational Psychologist at university

I can write to the cardiologist and ask for his input

I get DLA so can I use my award letter as proof?

 

What else can count?

 

Also it's obvious that the other side have asked this to be ordered, does this mean their ET3 wont be submitted until I furnish this?

 

ETA there's a statement on my application form about this, should I point that out to the tribunal as well? since they bloody well know i have NCS it's a bit negligent not to realise that your employee is unconcious.

[hanzo]

If the other side have requested the order, then you should have had sight of that application under Rule 11. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 , along with time to object to its granting.

If they have not done so, apply to the tribunal for the order to be set aside under rule 11.

If the chairman has granted the order on their own initiative, and there is not enough time for your GP's report to be prepared, apply for the order to be varied, again under Rule 11.

 

I note back in the thread you have not received legal aid in this matter. ABWOR(advice by way of represntation) legal aid is applicable, and can be granted by the Legal Aid board. Unfortunately, one of the tests is whether or not the applicant could conduct proceedings on their own behalf. Bearing in mind Jen's excellent posts, I think that she could.

[GlasweJen]

I don't qualify for legal representation, SLAB say all sorts but it basically boils down to it's too expensive. if there's a lot of controversy over the disability discrimination case then they might give me a disability lawyer to appeal (??) strange but true.

[GlasweJen]

So on with the saga.

 

My friend got a text a few days ago from an old colleage saying "Jenschnifer is a liar......" Now the person who sent the text (Miss A) used to work with both myself and the person who recieved the text (Mr B).

 

Miss A is named on my ET1 form as one of the people who told me I would be fired as a result of my grievance letter. Miss A is in a relationship with one of the assistant managers who may have read my grievance as the letter was left lying around the office or it may have been discussed at a mangers meeting. Obviously the company have since pulled Miss A up for her remarks knowing that this is now heading for tribunal.

 

Miss A is known as a notorious gossip and still works for the company with whom I am in dispute. It is quite likely that she is saying all this at work and in doing so may be predujicing people who I intend to use as witnesses at tribunal including Mr C who is the only person I am still in touch with who witnessed with initial conversation between myself and Miss A.

 

So here's my questions:

 

1. Has head office breached confidentiality by sharing my ET1 form with the unit (it was served to head office and the action is against the company, not an individual at the unit)

2. Should Miss A know details in my ET1 form?

3. Is there anyway I can have Miss A "gagged" until such a time as my witness statements have been requested and prepared?

4. How do I go about complaining about this? does it have to be through the tribunal now?

 

ETA Miss A is a supervisor and not a manager, Mr C is also a supervisor. Mr B does not still have the message due to it being a relatively new phone that he hasn't mastered the working of yet, he is also a witness for me and does not want to be dragged any further into this.

[Weird Al Yankovic]

Hi Jen

 

I can see nothing wrong here to be honest.

 

Your claim is against your former employers and all mentioned are employees. Even if they were not it is up to your former employers/the employees how they feel they want to approach this.

 

All that matters is what witnesses say at the hearing and not before.

 

That is a word of warning. A witness could well end up a hindrance to you who you think may be valuable.

[GlasweJen]

You see my problem is that the girl isn't a witness and she is really nothing to do with this other than the managers using her to voice what they didn't have the balls to say when I still worked there. No doubt she's been spoken to about telling me I'm about to get fired and she knows because her boyfriend is a manager.

 

I'm more worried about her waltzing about telling the world her version of the events and possibly clouding my witnesses real memory of the events. I don't see how she could know about what's written on the form as the work is in Edinburgh and the paper was served to an office on the other side of the country. Surely the work have a responsibility to keep things like details on a court form (which also contains medical details) out of site of normal employees?

[GlasweJen]

I'm in a pickle. The ET sent a letter dated 24/10 and said I had 14 days from the date of the letter to respond. I asked for it to be varied because 12 days (by the time I got it) wasn't long enough to get all the medical evidence. My time is up on Wednesday so it has to be posted by tomorrow, what do I do? Shall I send the answers plus what evidence I do have along with the email I sent them (over a week ago) and the email from the cardiologists secretary saying he needed more time?

[saintly_1]

Hi Jens ...... it would be a lot easier for people to offer advice if you kept to just 1 thread ..... trying to follow what has gone before is very hard when you have to search through several threads will attempt to sort your threads and get the relevant ones merged

[Weird Al Yankovic]

Explain to the ET the problem and that you will amend your particulars in due course.

[GlasweJen]

Thanks Al

[GlasweJen]

Deadline for the other side to respond passed yesterday, when can i expect to hear what's happening next?

[hanzo]

If the other side haven't entered a response then the tribunal can either enter a default judgement or hold an undefended hearing. In a case with DDA elements, it is more likely to proceed to an undefended hearing, where you would give evidence and the chairman would ask you questions and look through your document bundle.

If they've entered a response, you will probably get it within 1-2 weeks, since it has to be viewed by a chairman before acceptance.

Phone up the tribunal to see if a response has been entered.

[GlasweJen]

The tribunal has recieved a defence and they say a copy is in the post. Got a phone call from ACAS earlier saying that the company wanted to settle and asking me if I had a figure in mind (I don't). He said he'll ask them to name a figure and get back to me, he said from his experience i should expect roughly £2500 with a maximum asking of £3500 if I'm lucky and they want this to disappear. Is it ok to refuse if they decide to offer less than £2500?

[hanzo]

You don't even have to conciliate- the ACAS process is independent and does not report to the tribunal. If you refuse a good offer, and the tribunal awards you less than that offer, then it makes it more likely an award for expenses will be made against you as this might be perceived as unreasonable conduct. However, awards for expenses are still rare.

Remember it's a conciliation process- you can reject a low offer, put in a higher figure yourself and see if they offer more.

Before entering into negotiations it's a good idea to prepare a statement of loss beforehand so that you know the maximum a tribunal is likely to award you.

[Weird Al Yankovic]

Also use a strategy Jen.

 

My hearing is on the 7th December and I could have had ACAS to conciliate up to the 29th November but I withdrew participation in early October and I have been silent since then.

 

Today I received an offer from my ex-employer's solicitors which is rather derisory and I'm not even going to reply. (This may give the impression that money is not the priority for me but, rather, a principled point I want to pursue)

 

They are obviously sweating on the fact that I have an excellent case and their costs are mounting.

 

The silent treatment is something lawyers don't like. They can't bully you.

[GlasweJen]

Good plan. I shall have to strategise. To be honest I haven't actually lost out on much except wages which I understand I can't claim them all back so this really is based on a principal. The whole thing is still very early on with regard to tribunal procedure, ACAS say I should expect at least another 4 - 5 months of this but the company has 2 more units that I am aware of due to open soon so I think that now they have a lawyer on board (that's right, after the HR department got the company so far into sh*t they can't see daylight) they're trying to sweep this all away to avoid bad publicity. Hogmanay is a big money earner in Scotland but it's one of their most competitive times of the year.

[Weird Al Yankovic]

Jen, you may be compensated for loss of earnings for unfair dismissal.

 

Btw, have you tried this? Tribunal Research and Report Bureau: Employment Tribunals & Industrial Tribunals

 

You get £50 and a booklet for just giving your tribunal case number!

It took about a month though and not 14 days.