unfair dismissal offer

Martra_27

We know we are asking you guys an impossible question as you are not in our shoes but to get your feedbacks and extra info is great.We have gone this far had a great deal of stress and upset and would not want at the last minute take an uninformed move that could basically drop us in a worse situation so the more opinions the better .The cab rep says the employer wants a response this side of xmas and he,ll pay up the £1,500 straight away as he,s gone away to the cayman islands for two weeks negotiation is limited. The hearing would be scheduled for sometime in april if we go ahead .Would it be worth sitting tight and putting our own offer on the table?

DVardysShadow

Me? I would let it go to the tribunal. The consensus seems to be it is a poor offer [keeping to parliamentary language]. The guy is trying to fob you off with less than you would win - and to pressure you with his holiday in the Caymens and the reduced scope for negotiation. Tactically, I wouldn't reply till after Christmas, as it is no more than a week away and you should not be pressured. Tell them you can't reply before Christmas, because you are thumbing your way to Bognor Regis for your Christmas break.

As reinstatement is part of the offer, I would say that wages should be paid for the interim.

Moreover it is a bolddy cheek to do you down by £7000 and go to the Caymens for Christmas.

Jarndyce

DVardysShadow wrote: »

So,my thought is to take the reinstatement, go through all the processes and look for an agreed departure if he would rather not work there after having been back for a while.

DVardysShadow wrote: »

Me? I would let it go to the tribunal. The consensus seems to be it is a poor offer [keeping to parliamentary language]. The guy is trying to fob you off with less than you would win - and to pressure you with his holiday in the Caymens and the reduced scope for negotiation.

So what exactly is your advice?!!

I think it is irresponsible of anyone to advise the OP to accept the offer. They need to consider primarily what it means to them in their particular circumstances. If they want their job back, take the reinstatement. If they do not, continue to tribunal (although this is unlikely to get as far as a hearing especially if the respondent is legally represented, given the deposit order already in place).

DVardysShadow

Jarndyce wrote: »

So what exactly is your advice?!!

Sorry lack of clarity on my part, it is against the question of whether to take reinstatement at all, given the breakdown of trust, and assuming wages were made up in full. Not with just £1500.

I will take it you would class it as poorly expressed rather than irresponsible.

Jarndyce

DVardysShadow wrote: »

I will take it you would class it as poorly expressed rather than irresponsible.

Yes that wasn't aimed at you or anyone in particular.

zzzLazyDaisy

Martra_27 wrote: »

We know we are asking you guys an impossible question as you are not in our shoes but to get your feedbacks and extra info is great.We have gone this far had a great deal of stress and upset and would not want at the last minute take an uninformed move that could basically drop us in a worse situation so the more opinions the better .The cab rep says the employer wants a response this side of xmas and he,ll pay up the £1,500 straight away as he,s gone away to the cayman islands for two weeks negotiation is limited. The hearing would be scheduled for sometime in april if we go ahead .Would it be worth sitting tight and putting our own offer on the table?

Okay, this is only what I would do, personally, and is NOT advice in any way, shape or form!

First I would not be pressured into replying before Christmas. There is nothing to stop you going back to the negotiating table after Christmas. Take your time and go back with a realistic counter-offer (from your point of view) which you would be willing to negotiate down from.

The employer has been put under pressure by the tribunal, as he has a time limit to pay the £500. He wants the whole thing done and dusted before he goes on holiday, so he can enjoy his break. Well tough!

Now that you have told us that the employer was ordered to pay £500 as a condition of continuing, that puts a whole different light on it! It is very rare for this to happen as the normal rule in tribunal is that an employer is entitled to defend a claim made against him/it. Also, from what you say, this isn't just an unfair dismissal claim, but is also potentially disability discrimination (I hope you have made a discrimination claim?)

Personally I would never go back to work for an employer in these circumstances. Why? Because he has shown a serious lack of awareness of disability issues. It sounds like your OP is going to have on-going health problems and this employer is probably not going to be the most co-operative where making adjustments is concerned. Completely leaving aside the dismissal and tribunal claim, your OP is probably going to be under a lot of stress and pressure if he returned to his old job, and that is not going to help his health, which ultimately has to be a big consideration (I speak as someone with a chronic health condition).

On that point, though, do be aware that if/when you win the claim, the tribunal must consider what would have been the outcome if he had not been dismissed. If the outcome would have been that he would never have been fit to return to his previous role, and if the employer convinces the tribunal that it would not be reasonably possibly for them to make adjustments to enable him to return to work, then compensation will be calculated on that basis.

Assuming you have made a disability discrimination claim, the tribunal will also make an award for 'injury to feelings' that is the upset that was caused by the dismissal and the way it was carried out.

Martra_27

Thanks for your advice there is a claim in for discrimination At the pre hearing he totally disregarded this the judge asked does he accept that my husbands condition is a disability he basically said despite the medical reports! his words"he could have made it up"the judge had to suggest that he re read the medical evidence.The case would have been done and dusted there and then on the unfair dismissal grounds.His boss felt there was no way my hubby was classed as disabled in his eyes and he wanted more proof and further tests which we agreed to. The cab rep stated to the judge that it is a degenerative disease and hubby will only be able to take a lighter duty jobs from now on he's in his 50's ,as you say health comes first.

zzzLazyDaisy

Here is a copy of the Guidance of what constitutes a disability, which decision makers (including tribunal judges) must take into account.

http://www.equalityhumanrights.com/uploaded_files/guidance_on_matters_to_be_taken_into_account_in_determining_questions_relating_to_the_definition_of_disability.pdf

The question is not 'does he suffer from XXX condition' but 'how long has the condition lasted/is likely to last, and does it have a significant effect on his ability to carry out day to day activities'

It sounds like the Tribunal Chairman has ordered a joint medical report to be prepared? You should have an input into who carries out the report, so make sure that it is a consultant with a specialism in the field of your OH health condition.

Read the above guidance carefully and go through each section, making sure you can address the issues raised.

Remember it is not for the doctor to say whether or not the illness is a disability under the Equality Act (though many will give guidance on the issue). Rather it is the doctor's place to say what the condition is, how it manifests now and what the likely prognosis is. From that information it is for the judge to decide whether OH comes within the criteria of being 'disabled' for the purposes of employment protection.

The employer's problem is that he doesn't have to know, at the time of the dismissal, that the employee has a disability. It is enough that, had he followed proper procedures, the likelihood is that he would have been made aware of this. In that case he is deemed to know about the disability at the time of dismissal (if that makes sense?).

EDIT - the referral to a doctor will be an additional cost to the employer, so he may be willing to up the offer in order to avoid these additional costs.

SarEl

Martra_27 wrote: »

The situation arose when hubby came over ill and his contract was terminated whilst on sick leave after only 4 weeks without warning . He has since been diagnosed with kidney disease .

I agree entirely with zzzLazyDaisy on this, but your above quote does leave me with a few concerns which may influence your negotiations. Is it correct that your husband was off sick, then sacked, and then received a diagnosis which constituted a disability? Because this could, if the employer gets lawyered up, heavily impact on the potential award. It seems on the face of it that this is certainly unfair dismissal, but disability discrimination requires that the employer knows about or could reasonably have known about a disability. I can see no way that an employer could have reasonably known about a degenerative kidney disease - so if your time line is correct and the diagnosis was only made after the dismissal, this part of the argument would be weak. I mention this because knowing what tribunals tend to award, I would estimate that CAB are probably relying on the discrimination element in their estimate of the potential award.

If, therefore, you were to be looking towards finanicial settlement rather than reinstatement, I think it would be wise to consider this - what you may be realistically awarded is a big factor on what a "good offer" is.

SarEl

Sorry - got interrupted and cross posted with LazyDaisy!