Unfair Dismissal/Employment Tribunal help needed please...

Horace

Burny_Sweetwater_Glasgow wrote: »

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.

Yes the law is a farce but the fact remains that the employee will still need to raise a grievance to appeal against a dismissal. Unfortunately, I don't make the laws, I can only comment on them from the standpoint of an ex union official and from personal experience. I am also not party to the grievance procedure of the OP's employer so i am assuming that it follows current legistation.

I would suggest that the OP contacts ACAS.

BlueIsTheColour

ACAS will have contacted the OP as in all tribunal cases they have a duty to conciliate in order to try to prevent the tribunal occuring.

With regards to the contract, as has been said, this does not have to be provided, by turning up each day and getting paid, you have accepted the terms, as they are perceived to be. There is a statutory right to a written statement of employment particulars though, so this could be added to the original claim.

Polkey is a well used piece of case law, which said that whilst a dismissal was unfair as procedures weren't followed because the outcome would have been the same even if they had, the award was reduced.

As has been said, it could be worth checking any home insurance policy to see if you have legal cover or access to a legal helpline.

ACAS will also contact the employer following receipt of the ET3 as part of the concilliation process.

therealdessie

Coming back to your original points MissFM, I don't think you need to worry about the content of the ET1 and ET3 response; at this stage the form is deliberately kept short for you to outline the basis of your case - as it has been accepted the court didn't see any immediate issues with your argument. During the next stage where you meet for conciliation you can go over your other issues but I would advise writing to the employer in the meantime and having them clarify your other points of concern so that you have it in writing before you get to court (if you get that far).

As far as the grievance procedure goes, your situation is similar to mine and I didn't exercise that procedure either since like you my employer had given their view clearly without the option of appeal. I informed the court that the employer had closed contact (there was a letter to confirm this) so I had no choice but to proceed to the tribunal stage. The grievance procedure is not a get-out clause for employers, it's simply a chance for the employer to explore all available options before further action; of course that's not always feasible and the court will recognise this.

jobbingmusician

Some useful points made above.

I would add - it might be a useful course of action to write to your employer stating that you wish to appeal against your redundancy as you were not notified of it in writing and so do not understand the grounds for redundancy. Tell them that this letter should also constitute a grievance against the fact that you were not notified of the grounds for redundancy, and that you remain willing to attend any appeal. State that you had not stated this grievance before because they had told you (hopefully in writing ) that the decision to dismiss you was 'Totally irrevocable', and (if this is true) because you had never been given a copy of their grievance procedure (you may not have realised that one existed?)

This will demonstrate to the tribunal that you tried to exhaust their grievance procedure once you were aware of it, and accepted their (rather late) offer of an appeal.

missfunkymonkey

Thanks for all your input and advice so far everyone. It really has been very kind of you to help me out in what is currently a very stressful time for me.

Regarding my claim;

I am very worried about the fact I did not appeal and just went straight to tribunal. I'm also a bit annoyed that this isn't made more clear on literature I read about the process of a grievance. The ones I read simply stated that I must raise a grievance and allow my ex employer 28 days to respond before going to tribunal. I even telephoned the Employment Tribunal when I received my ex employer's response letter to ask whether I needed to respond to this or can I just go ahead with the claim and the lady I spoke to (Albeit the person who answered the phone and may have been a telephone operator) said that I could proceed with the claim which I did. Anyway, my fault really as I should have taken legal advice or spoken to Acas at the time.

I've just had another look at my ex employer's response to my grievance letter. They did offer me the opportunity of attending a meeting to appeal the decision or alternatively dealing with it by way of the modified grievance procedure through correspondence.

Seeing as I did not respond to this and went straight ahead with the claim, have I left it too late to write to them through the modifed procedure? Especially as I have now received their ET3 response form which states that I was given the opportunity to appeal.

My ex employer used the term 'Totally irrevocable' verbally on the day of my dismissal and not in writing so I unfortunately I don't think that I can use that as a reason for not appealing.

So I am in a bit of quandry as to what to do next really. There is definitely a discrepancy on their ET3 form in that they only put my basic salary in the section for normal take home pay when they know full well I have earnt commission in almost every month in the last couple of years. Is it worth me writing to them directly to point this out to them and and at the same time try and incorporate the points I would have included had I written back to them? Or am I better off just letting things run their course at this stage and taking it on the chin if the tribunal decide I did not follow the correct procedure? I also need to decide whether I should write to ET ammending my claim to include their failure to provide a written statement of employment particulars. Is this worth doing?

Acas have asked me to provide a schedule of loss which I will probably draw up over the weekend and email to them. I do however have a feeling my ex employer will just allow it go to tribunal and contest the claim on the day.

Any thoughts or advice from you kind people would once again be much appreciated.

Just as a matter of interest whom is responsible for the judge's/tribunal costs? From what I've read, the claimant very rarely has to pay so would the respondent be responsible no matter what the decision is and if so what are the approx costs. A friend of my boyfriend says he heard that the judge's costs can be approx £2,500 but I just wondered if anyone knew how it works.

Burny_Sweetwater_Glasgow

HI Miss FM,
Did you raise your grievance before or after you were dismissed? What did you actually say in your grievance letter? What was the actual content of their reply?Have they written back to you since their initial response or has there been no further correspondence?
If they gave you the right of appeal that should have not (in my mind anyway) been in response to you raising a grievance with them. You would have had a right of appeal to any decision they made in relation to your grievance but they failed to give you the right of appeal to the dismissal.To give you a right to appeal your dismissal as a response to your grievance is not procedurally correct as far as I am concerned.
Employers are DUTY bound to follow the minimum stages when dealing with dismissals (redundancy), had they the result would probably have been the same and you would not have had a very good case, if any, for unfair dismissal.
If we forget that you raised this grievance would they still been able to say that they gave you a right of appeal, NO.

Although tribunals are bound by the laws of the land, they do on occassion look at what would seem to be common sense and in your case the grievance is neither here nor there, you were dismissed through redundancy (valid reason) and from what you have writtem here your employer has failed to follow any procedures let alone the minimum requirements. I would have thought any sensible person sitting in judgement of your claim would look at the events that led up to your grievance being raised and treat that as one issue which needed to decided upon first and if they come to the same conclusion as me, but I am only a mere mortal, they would find in your favour and choose to ignore the events that occured afterwards.
If this happened to me exactly the way you have stated here and having received my monies (although you have a gripe about the commission aspect) and if conciliation cannot be agreed (monetory sum for you to go away that you would bewilling to accept) I would go all the way to tribunal, you have nothing to lose, you have already lost your job and you have been paid and I really do think they are on a hiding to nothing. As for costs these are seldom awarded as each side is responsible for their own costs so you have no worries there. Thats what I would do anyway, a hard decision but I don't really see how you could lose.
I am sure others will disagree or maybe some might agree but thats just like the laws we are all governed by, open to interpretation. Good Luck.

pawpurrs

OP I am in exactly the same boat, if the reason for the tribunal is unfair dismissal then you Dont need to raise a grievance as you have been dismissed.
It clearly states that in the guidance notes for the ET1 form.

hundredk

missfunkymonkey wrote: »

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

I was made redundant in 1994, I say redundant, it was more like went in after new year and told no job due to downturn in business and paid 1 week in lieu. I was certainly not taken through any grievance/redundancy procedure, nor did I get any formal notification, just told on the day. I immeadiately applied for ET and after 8 months to get to the tribunal I was awarded pay in lieu of notice and statutory redundancy. I recall this was paid by govt as the company went into administration.

The actual tribnal attendance was slightly scary but informal (though oaths are taken and you address the panel), more like an interview with, possibly a few people watching. The panel are aware that you may be nervous and dont judge that.

If you have been paid contractual notice and stat redundancy you cant claim these at ET unless the amount is not what it should be. Are you seeking reinstatement? , or compensation for loss of earnings - I think this would be schedule of loss you referred to and this would be difference in what you would have earned vs what you have actually earned since you were dismissed - so, simply if you find employment (say) 2 months later on same renumeration, loss would be 2 months pay. If you are seeking reinstatement, consider whether the position would be untenable if you returned. The court may ask if this is feasible/acceptable.

All based on events as I recall - others may correct me or things may have changed since 1994.

Hope this helps.

missfunkymonkey

Some interesting observations, thanks. Although now I'm really confused!

Is this correct pawpurrs that for an unfair dismissal claim I needn't have bothered raising a grievance and could've gone straight ahead in submitting a claim to ET? There is a question on the ET1 form which asks 'Did you allow at least 28 days between the date you put your complaint to the respondent and the date you sent us this claim?'

If what you are saying is correct and I really hope you are, then surely I do not need to have exhausted a grievance procedure (which I did not) as has been suggested in other posts?

Burney, I raised my grievance after I was dismissed as I was made redundant with immediate effect, no consultation, no selection criteria discussed or anything. I was simply called to my MD's office at 5pm one afternoon and told I was being made redundant because there was not enough work for me and that I was to leave the firm that evening. No appeal was offered or mentioned, I was told the decison was 'Totally irrevocable'. To be honest I was in such a state of shock that I did not even query it. I was given a cheque for my redundancy payment, a month's basic pay in lieu of notice (which was taxed) and told I wasn't required to work my notice period.

I then wrote to them complaining about their failure to follow any of the procedures. I also stated that I did not believe PILON was taxable (Can someone please advise on this). They wrote back within 28 days asking me to attend a meeting to appeal the dismissal or if not that it could be dealt with by way of the modified grievance procedure. They did not address my complaint about them not following any procedures. They replied that PILON was taxable and asked on what grounds I thought it wasn't.

I did not reply to this. I went staright ahead with the ET1 form and they have now submitted their ET3 resisting the claim and basically saying consulting would have made no difference to me being made redundant (Polkey) and also stating that they did offer me the chance to appeal.They chose not to mention that the appeal was only offered in their response letter and not when I was dismissed.

Tomorrow I am contacting ET adding a further complaint to the claim that I never received a contract or a written statement of employment particulars during my time there.

Any comments or advice on any of the above would be much appreciated.


Thanks

Lucias_mum

In my opinion I think they're on very shaky ground and anything you can add to further your claim would be useful. I admire your sense of purpose and not backing down from this - I am about to lodge a complaint with ET myself - I will keep a close eye on how you get on - Good luck x