Employment Tribunals

hawk30

Hiccups wrote: »

For an employment tribunal? Costs are not usually recoverable, there is absolutely no incentive for a solicitor to take on an ET case, unless they were cutting their teeth and just wanted to gain some experience (i.e. students from a university or law centre) or it was a particularly high value claim (from which the solicitor could take a good slice).

For a no win no fee arrangement the solicitor would also weigh up how much effort would be involved against the likely amount they would be able to recover. If they decide it's not worth it, it doesn't mean the case doesn't have good prospect of success.

In employment cases solicitors are allowed to have damages based agreements (contingency based agreements) which allow them to take up to 35% of any award.

CheekyMonkey22

Right, it's quite long but I hope to answer all the outstanding questions here:

princessdon wrote: »

@Marybelle01 - Yes that was a timeline posted by OP and the blue are parts I am totally confused about!

Princess beat me to adding the sick-ESA saga! Had I been allowed to return to work at a time (May) where medical supported this, I would not have had to claim ESA (July) and therefore had to get sicknotes for the ESA assessment period. I met some of the ESA qualifiers and was eligible and it in any case I wasn't up to/ready for getting another job as I technically still had one and wasn't looking for another and could have been/but wasn't signed off with stress/depression (from the situation I was in).

princessdon wrote: »

I can't figure out why someone wishes to return to work as fit in May (with phasing etc), but then says it was July before they were fit, then asks for Medical Retirement, Then gets another sick note in July.

I was fit from at least May, but this was the first time I had specific medical evidence that stated that, rather than me self assessing and stating that is the case. I was instructed to apply for IHR in Jan, but wasn't acted upon and a medical assessment undertaken until July. After this point, I had additional medical evidence of fitness to work with minor adjustments. I did not want to apply for IHR, as I knew I was fit to work, but did so to be co-operative and was told the application could be withdrawn at any point.

marybelle01 wrote: »

Nobody suggested that the employer dismissed for unauthorised absence

The reason given was due to my attendance, unauthorised or otherwise.

princessdon wrote: »

I So you had sick notes (stating unfit for work) from July 2011 - but as they were not paying you sick pay, you didn't send it to your employers? .. In other words you weren't fit to return but you think they don't know that?

I told them in my capability hearing that I was claiming ESA because they dragged out the investigation and ‘failed’ to allow me to return to work and had to then be signed off as a result. Reason given by doctor was “[injury name] complication”, which DWP accepted. But I never sent these ESA-sicknotes because they were not paying me any sick pay (as a year had been exhausted) and they didn’t ask me for them. I wasn’t hiding anything from the employers.

Emmzi wrote: »

“what I *think* this is (but who can tell?) I'd say fairly high value. And OP does not seem to want to pay a lawyer. Nor does OP seem suited to the stress coming their way unassisted.”

Plainly unnecessary and quite rude. As for representing myself, it is a deliberate decision I have made. I can afford to pay for solicitor/barrister, but have chosen not to (at this point) for the following reasons. By representing myself, I know the case inside out (how, what, when etc. both good and bad) and shows I am capable undertake work analogous to my job (in an adversarial environment). And therefore the decision would seem unreasonable and if it is ‘manipulating’ the tribunal so be it. Works for me. Doubt my case will come down the tactics, given the available evidence, but still. Certainly if nothing else can write to the tribunal myself and save some pennies. I may have a barrister for the cross-examination, but haven't made a decision as yet

marybelle01 wrote: »

good luck with that by the way - the tribunal can order discovery of any documents the employer asks for)

I think its a reasonable objection given what’s already in existence, but if the tribunal disagrees so be it. There’s nothing of interest , except I was involved in a minor road accident recently and sought advice but didn’t get any injuries. All it will prove was what a waste of time it was. There are no skeletons hiding anywhere, except the graveyard!

marybelle01 wrote: »

Notionally July 2011, date was able to work again but can’t give a specific date was fit (Again you said a fit note was give, but by your own admission here it was July before you were able to work, was this FULL work no adjustments?)

I will always need some adjustments, due to my injury to my hands. For example, I can write but find it difficult, so use a computer for note taking. I have trouble opening windows etc. Really fairly minor things, but adjustments nonetheless. (Which were never identified by my employer]. Part-time flexible working from now on given the length of time off, whereas I used to work full-time, hardly unreasonable given nature of my work.

princessdon wrote: »

July-Oct – Minimal communication, limited to requests for consent, no discussion as to return or reasonable adjustments despite my prompting (Unacceptable, what did you do in this time, did you go to work, visit HR or was everything via email?) Ie what attempts did you make to resolve other than phone/email distance communications.

Honestly sat at home doing not a lot as I was expecting to return to work in quite quick order. Didn’t happen, so I had to claim ESA. Didn’t see HR or OH or ever return to my office. Kept ringing/e-mailing to state my position and intention to return, they (or I have) evidence that reasonable adjustments were discussed, although there is evidence of me wanting to talk about it . On HR’s side, it was limited to request for consent. As I suffered facial disfiguref to ment in my accident, I made sure I was in the position to cope of my return to work, by attending specialist make-up workshops, going out without restriction, practising typing etc. Might seem little fairly minor things but I was actively preparing myself to return to work and investigate ways around any impediments I found.

marybelle01 wrote: »

it strikes me that you are being deliberately obtuse and vague in the information you are providing here simply to support your own view of things that happened and give people misleading impressions of your position. In which case you are wasting your time asking for advice here, and wasting everyone elses time trying to help you because any advice they give you is based on a limited and objective interpretation of the facts filtered through your twisting of the facts to fit the claim.

If I wanted a pity party, I’d go elsewhere (like facebook perhaps) or call the Samaritans (IMO they do a brilliant job in what they do).

There is absolutely no benefit to me in omitting less favourable aspects, these battleships that were mentioned just don't exist.
I wanted impartial advice, based on the evidence. If I had given more specific information, in my opinion it would alter the context of what I said. Only thing I was not explicit about was the second medical was with a psychiatrist, given my disfigurement, but it doesn’t really alter or add anything.

I did not expect such a negative response, “means there is more to the story.”, “The devil is *always* in the detail and I suspect wih you it is the "reasonable" in "reasonable adjustment", “she was one of the few best chances you have on this site for good advice!”, “wasting your time asking for advice here”, “ are just a few; were unnecessary and not in the spirit of the forum. If you don’t have time or think answering is a waste of time, simply don’t answer. I’m sure some people do indeed need a reality check, given the nature of their problem, I however do not.
“your twisting of the facts to fit the claim” – Surely, is this not what the respondents solicitor will seek to do?

I am fortunately secure in my position that I’m plainly not bothered by your comments. (but wanted to check for free - given MSE aspect of the site) But do ask that you consider how you are interpreted, for others who may be in similar position but not dealing with it so well as I am. It is certainly my perception that some of the posters are HR professionals, which is exactly what I was looking for, but are slightly disgruntled by some spurious claims brought against them or in general.

Ultimately, I’m not fussed whether if I win or not, although tens of thousands of pounds (if not more, given the injury to my feelings) would be very handy. I’m quite emotionally detached from the whole situation, it’s all pretty small stuff considering what I’ve been through the last 2 years. Even if the tribunal awards costs against me for misbehaviour, they are unlikely to ever see anything. And I’ve estimated that bring their witnesses to tribunal will easily cost them in excess of £10k given the contract nature of work, so I’ve at least bloodied their nose (at least financially) which is my bare minimum objective I wish to achieve. Anything else is a billy bonus as I found even preparing for the case quite rewarding (bar my experience on here) and has boosted my confidence in getting another job in the future as I have just reinforced what I already thought about myself. In real terms for me, it has mostly kept me out of trouble for at least a few weeks, i will lose a week for the full hearing and had some minor printing costs. So bringing a claim to tribunal is not insurmountable excercise.

And to highlight once again this, an open forum and, even if no-one else does, I value my anonymity. And it’s no beyond the possibility that the other side can/will see my posts. I have not posted anything they do not already know or would be happy to tell them to their faces.

I’m going for surgery tomorrow in fact (and need to pack), so may not be in position to post for a some time. And given the overtly negative comments, is probably not worth the benefit after the hassle of doing so. Might redirect my efforts looking at case law instead. Unless I have very specific questions.

But I thank everyone once again for your interest and any comments (good and bad) you have made. I do appreciate your time. I will certainly post again in the future, to update you on how I got on (btw my full hearing is sept) and whether or not I was successful in my claim or not.
Thank you.

Emmzi

CheekyMonkey22 wrote: »

Part-time flexible working from now on given the length of time off, whereas I used to work full-time, hardly unreasonable given nature of my work.

This is the single most important thing you have said and you are saying it on page 4.

You do not get to decide what is reasonable. Actually, nor does the ET - the employer does.

I really DO think you need a solicitor! And I don't care if you think I am rude, you do not understand the law and the role of the ET here.

I hope your surgery goes well.

Pricivius

Just caught up with this after originally posting on page 1...

A few things have leapt out at me, as others have identified:

- your company will have a sickness absence policy. If you don't turn up, you ring in sick and then send sick notes. It doesn't matter if they are still paying you or not, you remain employed by them and must report in. If you are fit, you send a fit note and turn up to the office. If you are fit with adjustments, you send the note and start the discussion re the adjustments. A Tribunal will want to know why you didn't send your employer any fit notes between July and October. The notes will certainly be disclosable and I very much doubt you will be able to avoid it - if they declare you unfit, then that's what you were. Not disclosing them when they are clearly relevant shows there is something you are trying to hide - not good.

- as Emmzi says above, it is not for you to decide reasonableness of adjustments, it is for the employer. Part-time flexi is very different from full time fixed and the employer can have many reasons why this is simply not reasonable for your role.

- you don't explain how much time you will be needing off for future surgeries. An employer is entitled to take this into account in deciding whether you are capable of fulfilling the role. If you will be off for 4 months in the next 12 due to surgery and recovery, for example, are you capable of fulfilling your contract of employment? Business continuity will suffer, extra costs of replacing you temporarily, plus paying you whilst you are off, for example - these are financially difficult times and employers are seeing some sympathy from Tribunals.

I would strongly recommend seeking a legal opinion - a solicitor will review your ET1 and ET3 for £500 or so. It would be worth it to give you an honest opinion based on the facts.

I hope all goes well with your surgery.