employment tribunal help.

dizzydotty_2

jobbingmusician wrote: »

What you should be focusing on is whether the employer followed their own (or reasonable) procedures in dismissing him, not on whether your son was stupid.

This employer sounds liable to settle as soon as they get some legal advice, so don't forget to get an agreed reference as part of the settlement, if they suddenly turn round and offer you money to go away.

They have already hired a solicitor and are denying unfair dismissal.

We received their response through their solicitor and the following statement suprised me.

If the respondent failed to follow a fair procedure ( which is not admitted ) then the respondent will allege that the claimant would have been dismissed in any event had a formal and fair procedure had been followed .

This bit amazed me as what they are saying is that basically its alright to sack someone without following the correct procedure as the outcome would have been the same anyway if they had done it properly, what then is the point of unfair dismissal on these grounds?.

dizzydotty_2

jjww wrote: »

Maybe they are trying to lighten the load although they could have just made him redundant if he has been there less than 2 years.

Often companies like you have described are the tricky ones to deal with as they don't have dedicated HR personnel and are often run by small business owners who struggle to deal with what is an awful lot of red tape and therefore important procedures end up overlooked.

Maybe an employment tribunal might be enough to force the company to re-evaluate their methods and procedures.

Has your son been able to find new employment?

He has had a few job interviews but no offer of employment to date.

We are compiling a folder of his interviews and applications,as they have put us to strict proof that he is trying to keep costs down by seeking employment.

Uncertain

dizzydotty wrote: »

They have already hired a solicitor and are denying unfair dismissal.

We received their response through their solicitor and the following statement suprised me.

If the respondent failed to follow a fair procedure ( which is not admitted ) then the respondent will allege that the claimant would have been dismissed in any event had a formal and fair procedure had been followed .

This bit amazed me as what they are saying is that basically its alright to sack someone without following the correct procedure as the outcome would have been the same anyway if they had done it properly, what then is the point of unfair dismissal on these grounds?.

What can happen in such circumstances is that you end up with a technical win but little or no compensation (Google Polkey Reduction).

This is a bit like some famous libel cases where the claimant wins but is awarded a penny in damages.

However that doesn't mean that WILL happen in this case. The employer's solicitors are obviously trying to put you off. It is worth fighting as the employers are running up a bill. Sooner or later they will think about cutting their losses and settling.

By the way, you can also claim for the failure to provide written particulars of employment (i.e a written "contract") within tow months of you son starting work. You can no longer bring this claim on its own but you can add it to any other valid claim. The tribunal can (but doesn't have to) impose a penalty for this.

If you son has not found work keep a very careful diary of all his attempts so that he can show he has made all reasonable attempts to minimise his losses.

Jarndyce

dizzydotty wrote: »

They have already hired a solicitor and are denying unfair dismissal.

We received their response through their solicitor and the following statement suprised me.

If the respondent failed to follow a fair procedure ( which is not admitted ) then the respondent will allege that the claimant would have been dismissed in any event had a formal and fair procedure had been followed .

This bit amazed me as what they are saying is that basically its alright to sack someone without following the correct procedure as the outcome would have been the same anyway if they had done it properly, what then is the point of unfair dismissal on these grounds?.

Sadly yes. Whilst you might be successful at a Tribunal in so far as the dismissal is declared technically unfair (which may help in terms of future job applications) the Tribunal can reduce the compensation awarded to zero if it feels that your son 'contributed to his own dismissal' eg if his timekeeping was of sufficient concern to have been dismissed had they followed the correct procedure.

May well be worth continuing though and arguing that without the necessary warnings etc how was he to know that he had transgressed if they did not follow a fair procedure (and if they had no procedure of their own they should be guided by the ACAS Code of Practice).

jobbingmusician

AND this is where custom and practice come in, and you should request attendance records for other employees, arguing that you know of at least one other case where someone was absent far more without sanctions (although HOW are you sure that no sanctions have been imposed?) and in fact you were so concerned that you reported the case to the HSE......:D

dmliverpool

kazzah60 wrote: »

the ONLY matter the tribunal is likely to consider ( I believe!) is whether or not your sons employers acted within the terms of their own disciplinary protocol.

Your son need to request a copy of the company's disciplinary protocol ( I am sure they will have one buried in a cupboard somewhere) and find out if they followed it or not

I believe MOST disciplinary protocols will have a section for 1st verbal warning, 2nd verbal warning, written warning etc

by the sounds of what your son is telling you on the face of it, it seems they probably didn't follow their own protocol and if that is the case, that is ALL you need to argue
don't complicate matters with irrelevancies, such as other employees - the Tribunal will not be interested.

Agreed. Sounds like a dodgy employer that's probably got away with this more times than it should have. I'm not a fan of tribunals as they can taint good careers and unless the employer has put me in a less favourable I wouldn't go for a tribunal unless I had no choice. I would be lucky enough to not work for them any more.

polgara

May also be worth your husband starting to search for work - if their cashflow is 'unsteady', they are flying by the seat of their pants in regards to employment practices and you do win your ET (with a significant award), then I'd lay bets that they'll go into receivership to avoid paying up! Seen if happen before

dizzydotty_2

Firstly I would like to thank everyone who has contributed to this thread ,I got some good information there.

Secondly I would like to know if there is anyone on here who can help me decipher the e mail I received from the tribunal telling me what steps to take and the deadlines needed for these.

Most of it I can understand, however two certain pieces have confused me a little and any help would be much appreciated ,they are as follow.

The claimant and the respondent shall send each other a list of any documents that they wish to refer to at the hearing or which are relevant to the case. They shall send each other a copy of any of these documents if requested to do so (this has to be done by 20th july 2011)

All the documents My son plans to use have to come from his ex employer so he cannot send ex employer notice of what documentation he plans to use if he has not received it from them yet.

This is driving me crazy (Lol) could anyone please just confirm that I am reading the above tribunal request right ? Thank you so much.

jobbingmusician

Dizzy, did you look at my thread Employment Tribunal Help?

It talks about putting a bundle together. It would be useful to you to have things like lists of dates and what happened, wouldn't it? Together with a copy of the draft statement your son is going to make? Do have a look, because it is this bundle they are referring to

dizzydotty_2

Thank you for your reply .I have had a look at your thread and it makes for interesting reading.

As of yet we have not got a list of any dates or particulars when my son was absent /left early as obviously at the time they happened we did not even imagine we would need them.

He did ask his employer for the times /dates a while ago when we were considering a tribunal but he was told by his employer and I quote " I dont have to give you anything "

The claimant and the respondent shall send each other a list of any documents that they wish to refer to at the hearing or which are relevant to the case. They shall send each other a copy of any of these documents if requested to do so (by 20th july)

The claimant and the respondent shall prepare full written statements of the evidence they and their witnesses intend to give at the hearing. No additional witness evidence may be allowed at the hearing without permission of the Tribunal. The written statements shall have numbered paragraphs. The claimant and the respondent shall send the written statements of their witnesses to each other. Four copies of each written statement shall be provided for use by the Tribunal at the hearing (and not before).(by 17 th august )

The question I am asking is do we have to list the witness names and that they intend giving a statement by the first deadline above (20th march ) The problem is that most of our evidence has to come from his e x employer and he has not given it yet.