Unfair Dismissal/Employment Tribunal help needed please...

missfunkymonkey · 9 March 2009 at 2:10AM

Hi All,

I am taking my ex employer to an employment tribunal for unfair dismissal due to being made redundant with immediate effect without any prior consultation or notice. I had been with them 6 years. Upon my dismissal I was paid the correct redundancy amount and one month's basic pay in lieu of notice but I was so unhappy at being given just 1 hour's notice to leave. I raised a grievance with them and in their response they offered me the chance to attend a meeting with them to appeal although I would not have been able to face going back into my MD's office again! I also was not really satisfied with their response to my grievance so I went ahead and submitted the ET1 form to the ET.

I have now received a copy of their ET3 form and the basis of their argument is that, even if they had consulted with me it would have made no difference to the outcome in me being made redundant (I understand this is something called a 'Polkey Ruling') They say there has been a reduction in the type of work I was required for and therefore they were making my postion redundant.

I do not necessarily agree with this as I was paid more commission for work I undertook for the company in 2008 than in any of the previous 5 years I had been with them. It's just I am now kicking myself I did not mention this on my ET1 form to back up this argument. I also did not have a written contract of employment with them and speaking with a friend she says I should have mentioned this on my ET1 form as the ET may award 2 - 4 weeks pay due to this.

Can anyone please advise whether I am able to provide the ET with this info in response to the ET3 and list the failure to provide a written contract as a further complaint? I am just worried they may frown upon it and it may go against me given that I have already submitted my claim and received the ET3 form.

I have also considered writing directly to my ex employer explaining why I disagree with the points contained within their ET3 but I don't know if this is correct protocol at this stage of the claim?

ACAS have also asked if I can provide them with a schedule of loss but I do not really know where to begin putting one together.

I really wish I could afford to appoint a solicitor to act for me but the cheapest quote I received was £185 per hour which I cannot afford so I will unfortunately have to represent myself which I have to say I'm dreading.

Any help or advice anyone is able to give me would be greatly appreciated.

Thanks

jdan9 · 9 March 2009 at 4:54AM

Call the local ET office to ask them if there is a procedure for providing supplementary information to your claim? There's a list of contact numbers for each office here.

Lucias_mum · 9 March 2009 at 11:03AM

Well done to you for not letting them get away with this. Were you in a selection pool or was it just you for consideration?

Check all your insurance policies for legal expenses cover - you may be able to fund a solicitor this way to represent you.

missfunkymonkey · 9 March 2009 at 12:40PM

Thanks for the contact numbers Jdan9. I worked in a small department of 4 people but I was the only person doing my particular job so they probably saw me as the easiest option. I've checked my insurance policies but unfortunately I do not have legal expenses cover so I will have to represent myself.

Do employers have a legal obligation to provide a written contract of employment even though I never actually requested they provide me with one?

Another point where I know they have broken the law and I did mention it on my ET1 form, is they have never offered any employees a stakeholder pension scheme despite employing 15 people in total. I have since been told that the ET may not have any jurisdiction on this though.

jobbingmusician · 10 March 2009 at 10:38AM

OK, I've tracked you down - thanks for leaving a trail of breadcrumbs for me!

Firstly, look here http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1073792401

Did they make more than 20 people redundant, or are they planning to?

This site actually looks very positive - it looks as if by failing to consult you at all, your redundancy may automatically be unfair. The points to stress to the tribunal are that at no time were you given the basis for selection for redundancy. I don't think it will matter too much that you haven't put on the ET1 that your commission was high, etc - it is up to the employer to prove that they have consulted with you individually. Since they haven't done this, you don't know what you are defending, do you? (Nevertheless, you won't lose anything by following jdan's good advice).

How much was in writing - ie did they provide you with minutes of the meeting at which they made you redundant with immediate effect?

Is there a union at your workplace? (I am guessing not, but it would be remiss not to ask!)

Your schedule of loss will be the amount you have lost in wages since your redundancy, less any redundancy payment.

I did a quick Google on Polkey and came up with this http://www.personneltoday.com/articles/2006/04/11/34865/dismissal-polkeys-place-in-the-modern-world.html which suggests that even if Polkey is felt to play a part (and your arguement about increased commission would argue against the fact that your post would have been redundant anyway) you might still be entitled to wages you would have accrued in the consultation period. You may also find http://www.thornleys-solicitors.co.uk/site/library/employmentlib/unfair_dismissal_and_polkey.html relevant.

Keep us informed, and don't worry about the idea of representing yourself. I did it, and I am still here in one piece - and richer for the experience.

missfunkymonkey · 10 March 2009 at 1:39PM

Thanks so much JobbingMusician, you've given me some very useful info there.

I was the only person made redundant in a company of 15 people. I was not in anyway consulted, verbally or in writing. I did not even get a letter to confirm I had been made redundant, just a cheque for the redundancy payment. They confirmed the redundancy in their response to my grievance letter I sent to them but really I wanted a separate letter confirming the redundancy. In their response letter they offered me the chance to appeal. Clearly this was only on legal advice, because when I was dismissed, I was told the decision to dismiss me was 'Totally irrevocable'.

There's no union at the company. To be honest, the way it is run is a bit shambolic, no stakeholder pension scheme, I was never given a written contract of employment...

Is an employer legally obliged to provide a written contract of employment even if I did not request one in my time there? I just wondered in case it is worth me ammending my claim to add this as a further complaint.

Thanks in advance.

Horace · 10 March 2009 at 6:30PM

missfunkymonkey wrote: »

Thanks so much JobbingMusician, you've given me some very useful info there.

I was the only person made redundant in a company of 15 people. I was not in anyway consulted, verbally or in writing. I did not even get a letter to confirm I had been made redundant, just a cheque for the redundancy payment. They confirmed the redundancy in their response to my grievance letter I sent to them but really I wanted a separate letter confirming the redundancy. In their response letter they offered me the chance to appeal. Clearly this was only on legal advice, because when I was dismissed, I was told the decision to dismiss me was 'Totally irrevocable'.

There's no union at the company. To be honest, the way it is run is a bit shambolic, no stakeholder pension scheme, I was never given a written contract of employment...

Is an employer legally obliged to provide a written contract of employment even if I did not request one in my time there? I just wondered in case it is worth me ammending my claim to add this as a further complaint.

Thanks in advance.

With regard to the contract issue - by working there and turning up for work every day then you are deemed to have accepted their terms and conditions of employment.

Be warned though with an ET that you are expected to have exhausted all grievance procedures - you say you have submitted a grievance and yet you state that you cannot face your boss, you need to do this because the ET can turn round and say "sorry but you didnt follow procedures so we can't make a ruling". The sensible thing to do would be appeal and state your case as to why you think your job should be retained, if at the end of the appeal they decide that your post has been made redundant then you continue with the ET - has your employer offered to redeploy you? At the ET you should be claiming that you were unfairly selected for redundancy as no one else was selected.

missfunkymonkey · 11 March 2009 at 12:15AM

Thanks for your advice Horace. I'm a bit worried that based on what you say I did not appeal or exhaust the grievance procedure and that it will go against me as I simply submitted the ET1 form once I had recieved my former employer's response. Is there anything I can do or say at the tribunal as to why I didn't exhaust the grievance procedure should I be asked that question?

With regards to not having a contract, do you feel at this stage it probably isn't worth my while sending the tribunal an ammendment to my claim that I was never given a contract or written statement of particulars?

Burny_Sweetwater_Glasgow · 11 March 2009 at 1:32AM

Hi,
Wouldn't life be easier if employment law was made much simpler. Having read your thread I was wondering, and I stand to be corrected by those with greater knowledge, is there some confusion here over 2 separate issues?

Firstly redundancy is a fair reason for dismissal - but employers MUST follow the correct procedures - notification of possible redundancy (in writing) followed by a meeting to discuss situation (notified of meeting in writing) - followed by dismissal with written notification of reasons and giving you the right to appeal their decision. From what you have said they have not followed any of these procedures, they did not give you any notification of right to appeal - in my mind, this is unfair dismissal because the correct procedures were not followed.
The fact that you raised a grievance is a separate matter altogether, although it was to do with your redundancy. The fact that you never completed the full grievance procedure by appealing should not, again in my opinion, affect your rights to claim unfair dismissal in respect of failure to follow the correct procedures in the first place.

As I said I stand to be corrected, but to me they are 2 distinct and separate issues and you are pursuing the first one through the tribunal.

Horace · 11 March 2009 at 11:07AM

You do need to have exhausted the grievance procedure because despite the employer not following procedure you need to be seen to follow it and by that you need to exhaust the procedure by appealing the dismissal. It could be that once procedures for the ET are in place and there is an exchange of documentation on both sides that the employer may offer an out of court settlement to make you go away which mean that the ET route would cease with immediate effect, you cannot rely on this until you have completed the grievance procedure.

In case you are wondering how I know - I had to do the same thing for an employment tribunal not only for myself but for people I was representing as their union rep.

Burny_Sweetwater_Glasgow · 11 March 2009 at 7:57PM

Hi Horace,
Surely the point of going to the tribunal is that missfunkymoney is seeking a claim for unfair dismissal (redundancy) for the reasons of failure to follow the minimum procedure expected under current legislation and that includes the right to appeal as the final stage. There was no right of appeal given so how can an appeal be possible, forget the raising of a grievance, that is a totally separate process to dismissal procedures. There is an automatic right to an appeal which was not given and that is blatant diregard of the law, automatically unfair I would say and the fact that none of the other steps were followed would further support this. An employee should not NEED to raise a grievance in a situation like this in order to appeal against a dismissal.

Unfair Dismissal/Employment Tribunal help needed please...

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