Employment Tribunal Office Unresponsive...

zzzLazyDaisy

First, can I say that I think if I were in your shoes, I'd edit my posts once you have the info you need, as you do not know who is reading this.

mooks wrote: »

My question is, even if the Tribunal accepts my claim that the entire process was rendered unfair by this conduct, what are the legal grounds for such a claim? To allow the Respondent's claim that the redundancy was fair would be to set a dangerous precedent, in that an employer could simply manipulate a restructure so as to dismiss whomever they want.

If, having heard the evidence from both sides, the tribunal accepts that the real order of events is that they first decided that they wanted you out of the company, and then then set about organising the restructure to ensure this happened, then they will decide in your favour.

As a general rule the tribunals do not like 'conspiracy theories' and for the most part are generally reluctant to believe that a company would alter its organisational structure just to target a particular employee so you need to be able back up your allegations with evidence. However if they DO believe you were targetted in this way, then the dismissal will be ruled unfair.

[/QUOTE] To allow the Respondent's claim that the redundancy was fair would be to set a dangerous precedent, in that an employer could simply manipulate a restructure so as to dismiss whomever they want.[/QUOTE]

Yes, and employers often do manipulate restructures to ensure that the less desirables fall off the cliff.... But proving it is another thing...

Tribunals will rarely interfere with a business decision to reorganise/restructure - and if they did, the respondent would appeal to the EAT as generally this is not within the tribunal's power, So provided the managers all stick together and their evidence is believed, they get away with it.

But in your case there is the unresolved grievance and the fact that the managers concerned were involved in the decision not to appoint you.

Were you ever given a full job description of the new post? Are you able to form a view on how closely it matched your old role and/or whether you had the skills to do the job (in your opinion). Also, do you know anything about the person who did get the job - how his/her qualifications and experience compare to yours? etc.

Edit... could someone please tell me how to do multiple quotes? Tnx :-)

mooks

zzzLazyDaisy wrote: »

First, can I say that I think if I were in your shoes, I'd edit my posts once you have the info you need, as you do not know who is reading this.

Agreed - now that I'm going into the specifics of my case, I'd hate for them to see where my argument lies. I'll edit these in a minute...

zzzLazyDaisy wrote: »

If, having heard the evidence from both sides, the tribunal accepts that the real order of events is that they first decided that they wanted you out of the company, and then then set about organising the restructure to ensure this happened, then they will decide in your favour.

As a general rule the tribunals do not like 'conspiracy theories' and for the most part are generally reluctant to believe that a company would alter its organisational structure just to target a particular employee so you need to be able back up your allegations with evidence. However if they DO believe you were targetted in this way, then the dismissal will be ruled unfair.

My ET1 goes into great detail about the way in which I was treated in the two years leading up to my redundancy. The Respondent at first seemed to think I was bringing a case for bullying and harassment, but there'd be no point in my doing that since the Tribunal doesn't have the jurisdiction to deal with those cases, from what I can gather.

[edited out]

zzzLazyDaisy wrote: »

Tribunals will rarely interfere with a business decision to reorganise/restructure - and if they did, the respondent would appeal to the EAT as generally this is not within the tribunal's power, So provided the managers all stick together and their evidence is believed, they get away with it.

To be fair, I don't deny that there was a business need for the restructure - the issue is that the new post had the same responsibilities, resources, staffing levels, and was exactly the same grade as the one I was already doing. By all accounts, I should have been automatically assimilated into the post, but the evidence I have shows that my manager manipulated the Hay grading process [edited out].

Their subsequent failure to justify their decision via the appeals process only seems to support my case - if there had been a fair and transparent regrading process surely they would have shown it to me and told me where to stick my appeal, but by failing to provide any supporting evidence whatsoever, for all I know, they never even went to Hay. They actually sat there and told me that they had no obligation to justify their decision. Even now, they haven't presented anything as evidence to the Tribunal that supports their decision not to assimilate - something I would have thought would be integral to their defence.

zzzLazyDaisy wrote: »

But in your case there is the unresolved grievance and the fact that the managers concerned were involved in the decision not to appoint you.

Absolutely - which is why the preceding two years are so important to my case. If they simply hadn't been accountable in terms of how they carried out the restructure, then that's one thing, but to have evidence that shows that for the past two years they'd tried to remove me from the post by various means is something else entirely. [edited out]

zzzLazyDaisy wrote: »

Were you ever given a full job description of the new post? Are you able to form a view on how closely it matched your old role and/or whether you had the skills to do the job (in your opinion). Also, do you know anything about the person who did get the job - how his/her qualifications and experience compare to yours? etc.

I did as part of the consultation process, and believe me - they were incredibly similar. That said though, the version they used for the consultation and the Hay version are actually different - there were actually fewer responsibilities on the newer job specification. I've even sat down with a highlighter and gone through the JDs and Person Specs with a fine-tooth comb and there is nothing in there that wasn't already mentioned on my existing JD. I appreciate certain responsibilities are weighted, but considering I was already performing those responsibilities that shouldn't create a difference.

[edited out]

zzzLazyDaisy wrote: »

Edit... could someone please tell me how to do multiple quotes? Tnx :-)

I just copy and paste the quote markers - it's a bit long-winded, but it seems to work...!

Savvy_Sue

zzzLazyDaisy wrote: »

Edit... could someone please tell me how to do multiple quotes? Tnx :-)

mooks wrote: »

I just copy and paste the quote markers - it's a bit long-winded, but it seems to work...!

Do you see that pretty little icon which looks like a pink and an orange speech bubble on a blue background? Just to the right of the quote button. Hit that on any posts you want to quote, then hit 'post reply'. Then you can edit what's within the quotes (slightly dangerous, but what I've done is quite reasonable since I had nothing intelligent to say about the core issues in this thread).

If you want to make smaller quotes from a long one, I do the above then copy and paste the longer quote as many times as I need to, then edit the quotes. I hope that makes sense ...

I think it only picks up 3 posts at a time.

zzzLazyDaisy

Savvy_Sue wrote: »

Do you see that pretty little icon which looks like a pink and an orange speech bubble on a blue background?

Ah, I wondered what that was for....

Savvy_Sue wrote: »

If you want to make smaller quotes from a long one, I do the above then copy and paste the longer quote as many times as I need to, then edit the quotes.

I see....

Savvy_Sue wrote: »

I hope that makes sense ...

Perfectly! Thank you

Exhausted_representative

I was interested in your comment on the role of judges at tribunal. In preparation for representing a friend a couple of months ago I spent a day at a hearing where the claimant was represented by a union official and the respondent (a large company) was represented by a solicitor, for some reason flying in from Belfast.

The solicitor arrived with bundles in a state of complete disarray and the hearing was delayed by more than an hour while this was corrected (although many errors remained obvious in the hearing). The union officer was old and tired and did not do a great job but tried at least. The solicitor asked almost no questions other than to repeatedly confirm signatures on various documents.

The judge became impatient and intervened to cross-examine the claimant himself, asking leading questions in a quite intimidating manner so the the young lad became confused and ended up contradicting himself. It was clear to me what the judge was up to and nothing more than I would expect from the respondent's solicitor but I was shocked to see a supposedly impartial judge behave this way. The lad was tricked into agreeing something he clearly didn't understand and the case was found against him.

The case itself was straight unfair dismissal on grounds of gross misconduct when in fact there was no misconduct. The error this lad had made was at worst gross negligence and the actual mistake I would have suggested was somewhat less serious than that, although the company did lose a considerable sum of money as a result of the mistake.

Not an auspicious introduction for me. As an unqualified and unpaid representative I take it from your comment that I cannot expect any support from the judge (the respondent in my case is represented by a barrister).

Thanks

SarEl

You really shouldn't take one single experience as the pattern of how employment tribunal judges act. Like any other walk of life, they are individuals - and some are hanging judges and some are not! But employment tribunals are not "impartial" in the sense that you mean (and not are any other courts to be honest!) - judges often intervene on "one side or the other" to get to the facts of a case. And in my experience, they do so with equal vigour on both sides. The problem with taking one experience and the collective complaints (valid or not) on a website is that you are basing your view on a prejudiced sample. If you were to go to a website giving advice to small employers (or employers in general) you would find exactly the same number of complaints about tribunals being prejuduced against them!

I am not defending individuals judgements here - tribunals can get it wrong as can any court. But equally, so can human beings in any walk of life, and being "elevated" to being a judge does not exactly come with a new skill set of being correct (or even nice) all the time. However, I would have to point out that there is a legal flaw in your judgement of this case you viewed. Gross misconduct does not only include deliberate wrong doing. It also includes any wrongdoing, whether deliberate or not, and therefore negligence is included. A tribunal does not re-hear a case, it has no powers to do so, although it is a common misconception that this is what they do. In the case of unfair dismissal they examine whether there was evidence or reasonable belief on the part of the employer that "something happened" (which it appears in this case it did); and then if they are satisfied that it did (whatever it was, large or small) there only remaining power is to consider whether dismissal fell within the range of reasonable responses. If the answer to that is yes, then they will not overturn an employers decision. Personal opinion - "well, I wouldn't have dismissed for that" - doesn't come into it.

Many of the misconceptions around what tribunals do comes from the fact that most lay people do not think like the law does. They witness or hear something, and they apply a judgement based on what they think is going on. So in the case of tribunals, they listen to why someone was dismissed and apply the test of "would I have come to the same decision in those circumstances", assuming that judges are doing the same thing. But they aren't and they can't, because that is not the power that they exercise. I realise that it is a very difficult thing for many people to grasp, not because they are stupid or naive, but because this type of thinking is not something that they apply in an everyday situation and they misconceive what the legal process that is going on in front of them is doing.

So when a client comes to see me they tell me their story. They think that I am listening to the story and deciding whether I support them or not. I am not. I am considering the application of the law and the tests of law. I rarely meet clients who "deserved" dismissing, and I often have great sympathy for them - but what I, as a person, think is unfair, cannot replace what I, as a lawyer, think of the case as regards "unfair in law". The two things are vastly different.

celinepatricia

When my husband first spoke to his union about what we consider his unfair dismissal, the solicitor said we had no case? I was not very happy with this and made an appointment with another union solicitor (from the same company but more senior) and he agreed to take the case to ET. If they are both looking at this from a point of law how can one say yes and one say no?

SarEl

celinepatricia wrote: »

When my husband first spoke to his union about what we consider his unfair dismissal, the solicitor said we had no case? I was not very happy with this and made an appointment with another union solicitor (from the same company but more senior) and he agreed to take the case to ET. If they are both looking at this from a point of law how can one say yes and one say no?

Two reasons. One is because the law is vast and subject to "legal judgement" - an "opinion" (there actually is a reason it's called "legal opinion ). Lawyers can also get things wrong! But especailly in employment law, where the way a judgement may go is subject to lots more "fuzziness", one lawyer may go one way and another the opposite way. Deciding to take a case doesn't mean it will win, and deciding not to doesn't mean it will loose. It's a balance of probabilities.

Two. Because senior legal people have more experience than junior ones! They may know something that others don't. That doesn't mean that juniors are any less good, but in any job experience counts. In my practice all "junior" opinions are checked by a "senior" - and as you know, we do a lot of trades union work, so this is our standard practice. But individuals chambers do different things, as do different legal practices.

And thinking about it - third (in the great tradition of Douglas Adams, this is the third of two parts) - because sometimes we go on gut instinct or personal feelings or even just a risk or a chance! If someone else says 49% (below the general standard of a case usually taken for unions), someone might just go, "oh what the hell - I can't disagree but lets give it a whirl". What is in 2% ? The difference between taking acase and not taking one.

This is the law, not a science.

Exhausted_representative

I wasn't suggesting this was how all tribunals run but merely that I was surprised at what appeared to me to be such partiality. I appreciate these guys want to get cases resolved and in the absence of the respondent's solicitor doing much about it he felt he had to intervene. I guess he derived the correct result bearing in mind what you say about gross misconduct, but (IMHO) his questioning should have been aimed at getting to the truth, not tricking the poor sap into contradicting himself simply because he was confused.That regrettably may be a legitimate tactic for a representative but it hardly seems right for a judge. Rather like the police fitting up a suspect with false evidence because they know he is guilty??

Our own case has just finished after a 3 day hearing and I now have 14 days to make written submissions, which seemed a better choice than summing up on the day given I was reeling at the time. My friend has no money and has returned from volunteering in Africa to attend the hearing. I have written to her family asking them to consider paying for a barrister to look over my written submission and reframe it, taking into account any obvious legal points (it is a straightforward constructive dismissal case, assuming there is such a thing). Can I approach a barrister directly for this if they agree or do I have to go via a solicitor? I know the rules have been relaxed but if anything they are more confusing now as a result. My friend did consult a solicitor at the beginning but the money quickly ran out - perhaps he would effect an introduction if it is needed??

After well over 1,000 (unpaid) hours on this I feel like a break!

Cheers

mooks

Just by way of an update, I had my invite to a Case Management Discussion today - which is great that after a year I finally have something 'real' happen. I've just spent the day preparing my Agenda notes.

The downside though, I've been asked to come prepared to state my availability - from November 2011... So that seems to be saying that's the earliest that my case can be heard. This has been one of the hardest years of my life - no work, no prospect of work, no money - and now I'm faced with the prospect of having to go another year before I have some kind of resolution...