Employment Tribunal - Please Help

confuseddotcodotuk

Hello all helpers. I have submitted my claim to ET due to unable to resolve the own money initially with the employer. NOW I need some advices/ views from you.

I appealed for my original dismissal. At the end of appeal hearing I was told to leave immediately without any reason at my last working day before my maternity leave start. The end of employment moved forward for 2 months. PILON was given however my 2 months entitled contractual benefits was unlawfully deduced. These included pension etc. and accrued holidays.  
My point is, 
It stated clearly in the contract that PILON clause applied when it was gross misconduct (summarily dismiss) which I have never been told. They should not have the right to dismiss me without a reason.
1. Has the employer breached the contract?
2. Was it a wrongful dismissal from the appeal hearing? (although I was told to leave in 2 months time originally)
3.The appeal manager should not increase the outcome according to ACAS Code of Pratice and cause my loss of contractual benefits unlawfully. Has the employer breached ACAS Code of Practice?

These 2 months notice period were actually falling into my maternity leave period. I have checked that my usual contractual benefits should still be continued during my maternity leave even in the notice period. I can see that the employer was intended to dismiss me early because I would start my maternity Leave, and to save the cost of my benefits. I was unfairly and unfavourably treated after my maternity notification/ during my maternity leaves.
4. Is it a maternity discrimination?

Besides, the HR deleted my maternity notification recorded in the HR online Portal. (It was important for Maternity Pay. Luckily I have the evidence to show I have notified the employer.) They also failed to confirm with me about my Maternity Leave start date within 28 days in accordance with their maternity policy and UK government guideline. ( I have attempted to get the confirmation from the HR but they never responded to this particular Maternity LEAVE arrangement question.) Although I had received the LATE Maternity Pay, I was poorly treated by my employer HR related to my Maternity related matter. If it was for the other employee, it would not be the same. 
5.  I know these were minor issues but are these still maternity discrimination?

WELCOME FOR ANY COMMENTS. THANK YOU ALL.

MalMonroe

Hello, sorry to hear about all your problems.  

There is a lot of information and you have many questions, so it might be best if at first you speak to someone at Acas - information in this link - https://www.acas.org.uk/contact

You say you have submitted a claim to ET which means that you must have already been in contact with Acas since you have to tell them first, as in this link - https://www.acas.org.uk/making-a-claim-to-an-employment-tribunal

Acas are not allowed to represent you but they can and do give valuable information about your rights and what you are and are not entitled to.

It appears that your employer may have breached terms of the Equality Act 2010 but you do need to speak to one of their advisers about this. If Acas cannot help, then Citizens Advice may well be able to - their link below.

https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals/

Your employer should have given you something in writing explaining what was happening, at the very least. You do need to speak to people who are experienced at this kind of thing, as I say, please contact Acas to start with. They are very good and they helped me with my Employment Tribunal. They should allocate you your named own adviser for the duration of your Tribunal preparation.

Undervalued

confuseddotcodotuk said:

Hello all helpers. I have submitted my claim to ET due to unable to resolve the own money initially with the employer. NOW I need some advices/ views from you.

I appealed for my original dismissal. At the end of appeal hearing I was told to leave immediately without any reason at my last working day before my maternity leave start. The end of employment moved forward for 2 months. PILON was given however my 2 months entitled contractual benefits was unlawfully deduced. These included pension etc. and accrued holidays.  
My point is, 
It stated clearly in the contract that PILON clause applied when it was gross misconduct (summarily dismiss) which I have never been told. They should not have the right to dismiss me without a reason.
1. Has the employer breached the contract?
2. Was it a wrongful dismissal from the appeal hearing? (although I was told to leave in 2 months time originally)
3.The appeal manager should not increase the outcome according to ACAS Code of Pratice and cause my loss of contractual benefits unlawfully. Has the employer breached ACAS Code of Practice?

These 2 months notice period were actually falling into my maternity leave period. I have checked that my usual contractual benefits should still be continued during my maternity leave even in the notice period. I can see that the employer was intended to dismiss me early because I would start my maternity Leave, and to save the cost of my benefits. I was unfairly and unfavourably treated after my maternity notification/ during my maternity leaves.
4. Is it a maternity discrimination?

Besides, the HR deleted my maternity notification recorded in the HR online Portal. (It was important for Maternity Pay. Luckily I have the evidence to show I have notified the employer.) They also failed to confirm with me about my Maternity Leave start date within 28 days in accordance with their maternity policy and UK government guideline. ( I have attempted to get the confirmation from the HR but they never responded to this particular Maternity LEAVE arrangement question.) Although I had received the LATE Maternity Pay, I was poorly treated by my employer HR related to my Maternity related matter. If it was for the other employee, it would not be the same. 
5.  I know these were minor issues but are these still maternity discrimination?

WELCOME FOR ANY COMMENTS. THANK YOU ALL.

1. PILON can under some circumstances be a breach of contract unless the contract gives the employer the right to choose to pay PILON at their discretion. Very often it is a moot point as employees are generally happy to be paid without having to work. However if as a result you lose a contractual benefit there may be a valid claim to be made.

For this reason the vast majority of employment contracts specifically allow the employer to pay PILON, are you totally sure yours is one of the rare exceptions?

2. Wrongful dismissal is basically breach of contract. For this reason there is no "two year qualifying period" as there is for the majority of unfair dismissal claims. In what way do you feel they have breached your contract?

3. Employers no longer have to follow the ACAS "code of practice" to the letter, as was once the case. They are now simply guidelines. The employer must make a reasonable effort to follow a fair procedure and following the guidelines is one way (but not the only way) of doing so. There are no longer automatic awards at tribunal for administrative errors alone.

4. IF you can show that was the real reason then yes in may be. However a pregnant employee can still be dismissed for other valid reasons.

5. Not in themselves. It may be additional evidence that may help with No 4.

TBagpuss

confuseddotcodotuk said:

Hello all helpers. I have submitted my claim to ET due to unable to resolve the own money initially with the employer. NOW I need some advices/ views from you.

I appealed for my original dismissal. At the end of appeal hearing I was told to leave immediately without any reason at my last working day before my maternity leave start. The end of employment moved forward for 2 months. PILON was given however my 2 months entitled contractual benefits was unlawfully deduced. These included pension etc. and accrued holidays.  
My point is, 
It stated clearly in the contract that PILON clause applied when it was gross misconduct (summarily dismiss) which I have never been told. They should not have the right to dismiss me without a reason.
1. Has the employer breached the contract?
2. Was it a wrongful dismissal from the appeal hearing? (although I was told to leave in 2 months time originally)
3.The appeal manager should not increase the outcome according to ACAS Code of Pratice and cause my loss of contractual benefits unlawfully. Has the employer breached ACAS Code of Practice?

These 2 months notice period were actually falling into my maternity leave period. I have checked that my usual contractual benefits should still be continued during my maternity leave even in the notice period. I can see that the employer was intended to dismiss me early because I would start my maternity Leave, and to save the cost of my benefits. I was unfairly and unfavourably treated after my maternity notification/ during my maternity leaves.
4. Is it a maternity discrimination?

Besides, the HR deleted my maternity notification recorded in the HR online Portal. (It was important for Maternity Pay. Luckily I have the evidence to show I have notified the employer.) They also failed to confirm with me about my Maternity Leave start date within 28 days in accordance with their maternity policy and UK government guideline. ( I have attempted to get the confirmation from the HR but they never responded to this particular Maternity LEAVE arrangement question.) Although I had received the LATE Maternity Pay, I was poorly treated by my employer HR related to my Maternity related matter. If it was for the other employee, it would not be the same. 
5.  I know these were minor issues but are these still maternity discrimination?

WELCOME FOR ANY COMMENTS. THANK YOU ALL.

I think you probably need to speak to Acas or to an employment lawyer as it sounds as though there's potentially quite a lot of background information here. 

In terms of the PILON, I think the issue would be whether this left you in a worse financial position than if they had simply let you serve your notice or put you on gardening leave - so if it  means the that you did not receive things such as pension contributions which would have been paid had you been working and that the net effect left you worse off then you may be entitled to seek to be put back in the position you would have been in - however, I would double and triple check not only your contract but also any employee handbook etc. - remember that the terms of your contract may have been changes due to more recent policies etc , and that the precise wording will be important  - for instance, does it explicitly say that PILON will only be used where someone is dismissed for gross misconduct (which seems odd, as if someone is summarily dismissed there wouldn't necessarily *be* a notice period) or does it say that it would 'typically' or 'normally' be used where someone has been dismissed due to gross misconduct, in which case it wouldn't prevent them doing it in other cases.

The code of practice is only a code of practice - it's not binding. So an employer could breach the code of practice without this necessarily meaning that their decision, or any dismissal arising from their actions, was unlawful.  Does the employer's internal disciplinary policy say they will follow the ACAS code of practice? What does their own policy say about what can be done on appeal?  If their policy says they will follow the ACAS code then if they haven't, that may be evidence that they didn't act in a fair / reasonable way, but it doesn't necessarily mean the dismissal was unfair.

Maternity discrimination - this would be where you were treated less favourably than other employees because you were pregnant, or where you were denied statutory rights such as reasonable time off for ante-natal appointments, or treated unfavourably for asserting those rights.  I think here, some of the issues would be whether HR deliberately deleted information to try to prevent you claiming your maternity rights, and whether you were in fact treated less favourably as a result of their actions. I'm not clear from your post whether they did anything to correct the issue when it was raised, and whether you were in fact disadvantaged. It may, of course, have been discriminatory even if it did not ultimately leave you worse off, but I think a tribunal would have to also consider whether there was any reasonable explanation (for example, if the deletion was after you were dismissed, it's  possible that your employer may say it was deleted by mistake as part of updating the system as you were no longer an employee 

What are you hoping to achieve? Do you believe that they owe you money in unpaid wages / pension contributions or that they owe you compensation for unfair dismissal, or both? What was the actual reason for your dismissal? 

Undervalued

confuseddotcodotuk said:

@ MalMonroe Thanks for info. I have already contacted with ACAS before submitting my claim to ET. Little help from Acas. I felt the guy just wanted to end my case without understanding
I am a litigant in person. No money to get a solicitor to represent me. I have to dig all the information to support my claim and research some cases.  I kept reviewing my claim whether it is worth to go ahead as I recieved a letter form the employer solicitor who threatened me about paying their legal cost if I failed. 
I also come up a question. Should their solicitor was got through the employer's insurance company? What cost has the employer actually pay for the law firm???

That is a fairly standard thing for the respondent's solicitor to do. That doesn't mean that they will actually be awarded costs if you lose. It can happen but generally you need to do more than just lose. Basically the judge would need to feel that either your case was so weak that it should never have been brought. Or that you you were abusing the process. Normally there would be fairly clear warnings form the judge at case management pre hearings, which you chose to ignore, before cost were awarded against you as a LIP. It happens, maybe slightly more often than was once the case, but it is still rare.

Marcon

confuseddotcodotuk said:

@ MalMonroe Thanks for info. I have already contacted with ACAS before submitting my claim to ET. Little help from Acas. I felt the guy just wanted to end my case without understanding

Just because ACAS didn't share your view of your case doesn't mean they didn't understand it - they may simply have been trying to explain to you why they think you are wrong.

confuseddotcodotuk said:

I also come up a question. Should their solicitor was got through the employer's insurance company? What cost has the employer actually pay for the law firm???

Very unlikely that the employer has insurance covering legal fees for an employment tribunal.

Marcon

Have you checked your home insurance policy to see if that gives you legal fees cover?

Undervalued

confuseddotcodotuk said:

TBagpuss said:

confuseddotcodotuk said:

Hello all helpers. I have submitted my claim to ET due to unable to resolve the own money initially with the employer. NOW I need some advices/ views from you.

I appealed for my original dismissal. At the end of appeal hearing I was told to leave immediately without any reason at my last working day before my maternity leave start. The end of employment moved forward for 2 months. PILON was given however my 2 months entitled contractual benefits was unlawfully deduced. These included pension etc. and accrued holidays.  
My point is, 
It stated clearly in the contract that PILON clause applied when it was gross misconduct (summarily dismiss) which I have never been told. They should not have the right to dismiss me without a reason.
1. Has the employer breached the contract?
2. Was it a wrongful dismissal from the appeal hearing? (although I was told to leave in 2 months time originally)
3.The appeal manager should not increase the outcome according to ACAS Code of Pratice and cause my loss of contractual benefits unlawfully. Has the employer breached ACAS Code of Practice?

These 2 months notice period were actually falling into my maternity leave period. I have checked that my usual contractual benefits should still be continued during my maternity leave even in the notice period. I can see that the employer was intended to dismiss me early because I would start my maternity Leave, and to save the cost of my benefits. I was unfairly and unfavourably treated after my maternity notification/ during my maternity leaves.
4. Is it a maternity discrimination?

Besides, the HR deleted my maternity notification recorded in the HR online Portal. (It was important for Maternity Pay. Luckily I have the evidence to show I have notified the employer.) They also failed to confirm with me about my Maternity Leave start date within 28 days in accordance with their maternity policy and UK government guideline. ( I have attempted to get the confirmation from the HR but they never responded to this particular Maternity LEAVE arrangement question.) Although I had received the LATE Maternity Pay, I was poorly treated by my employer HR related to my Maternity related matter. If it was for the other employee, it would not be the same. 
5.  I know these were minor issues but are these still maternity discrimination?

WELCOME FOR ANY COMMENTS. THANK YOU ALL.

I think you probably need to speak to Acas or to an employment lawyer as it sounds as though there's potentially quite a lot of background information here. 

In terms of the PILON, I think the issue would be whether this left you in a worse financial position than if they had simply let you serve your notice or put you on gardening leave - so if it  means the that you did not receive things such as pension contributions which would have been paid had you been working and that the net effect left you worse off then you may be entitled to seek to be put back in the position you would have been in - however, I would double and triple check not only your contract but also any employee handbook etc. - remember that the terms of your contract may have been changes due to more recent policies etc , and that the precise wording will be important  - for instance, does it explicitly say that PILON will only be used where someone is dismissed for gross misconduct (which seems odd, as if someone is summarily dismissed there wouldn't necessarily *be* a notice period) or does it say that it would 'typically' or 'normally' be used where someone has been dismissed due to gross misconduct, in which case it wouldn't prevent them doing it in other cases.

The code of practice is only a code of practice - it's not binding. So an employer could breach the code of practice without this necessarily meaning that their decision, or any dismissal arising from their actions, was unlawful.  Does the employer's internal disciplinary policy say they will follow the ACAS code of practice? What does their own policy say about what can be done on appeal?  If their policy says they will follow the ACAS code then if they haven't, that may be evidence that they didn't act in a fair / reasonable way, but it doesn't necessarily mean the dismissal was unfair.

Maternity discrimination - this would be where you were treated less favourably than other employees because you were pregnant, or where you were denied statutory rights such as reasonable time off for ante-natal appointments, or treated unfavourably for asserting those rights.  I think here, some of the issues would be whether HR deliberately deleted information to try to prevent you claiming your maternity rights, and whether you were in fact treated less favourably as a result of their actions. I'm not clear from your post whether they did anything to correct the issue when it was raised, and whether you were in fact disadvantaged. It may, of course, have been discriminatory even if it did not ultimately leave you worse off, but I think a tribunal would have to also consider whether there was any reasonable explanation (for example, if the deletion was after you were dismissed, it's  possible that your employer may say it was deleted by mistake as part of updating the system as you were no longer an employee 

What are you hoping to achieve? Do you believe that they owe you money in unpaid wages / pension contributions or that they owe you compensation for unfair dismissal, or both? What was the actual reason for your dismissal? 

TBagpuss Thanks for your comments. I have talked to ACAS. I did not feel that it was helpful. The ACAS just wanted to close the case without understanding the issues.

I was confirmed by the HR no employee handbook and no appeal procedure and policy. The HR confirmed the employer followed the ACAS code of practice. You are right that garden leave was the best option but for some reason they decided to take the wrong one. In my contract, the clause of garden leave is clearly stated that the employee will get the contractual benefits and accrued holidays, except bonus only.

PILON is under the section "Notice" in the contract. The employer may use this clause PILON to summarily dismiss the employee for gross misconduct immediately with a sum in lieu of salary without contractual benefits. Neither ‘normally’ nor ‘typically’ there. The main point to use this cause is about gross misconduct, I believe. If it is not gross misconduct, a) the employer should have no right to dismiss anyone immediately without a reason/ notice and b) the employer cannot refuse to pay the contractual benefits. Therefore the employer should have been breached the contract.

Sorry for not being clear. It was hard for me to draft out everything of my situation but please feel free to ask. So I found that my maternity notification was missing few days later, well before the appeal hearing. My HR related queries were all there (old and new) except this important notification. I kept asking why it was deleted. The HR just said they could not delete the record and that’s it, no more explanation. The HR could not show me the content I have been raised. They said they knew it but confirmed with several different later date in the email/ letter, not the exact correct date. I was so frustrated by their responses.  I also kept asking to confirm my maternity arrangement, especially maternity Leave starting date. But every time the HR just replied about waiting for my paperwork for my maternity pay. (I actually did not care about the maternity pay as I understood the maternity pay could only be proceeded until seeing the maternity form.) My point is they could simply confirm my maternity leave start date as it did not require to see any proof of my pregnancy, but they did not. It caused me so much distress as I did not know if I could start my maternity leave without their confirmation. I did not want to be accused of walk off the work without the employer approval. They have never ever confirmed my maternity leave dates and eventually just asked me to leave immediately on my last working date before my proposed maternity start date. These caused me substernal distress and I had to get the medical advice and check from my midwife. She has confirmed this in writing for my claim reference.

I was originally just asking the employer to pay me back the contractual benefits. They insisted that they did not owe me anything as they have PILON (salary only) up to the end of employment date. The employer has never explained clearly and particularly why they had the right to withdraw my contractual benefits. Then I started to think how I was treated by this employer since day 1 and during my pregnancy in this employment. I found that there were several areas that the employer did not treat me fairly and favourably since I informally mentioned at work. They would need to pay back the owe and reasonably compensate for any unfair treatments to me.

The original dismissal was about my poor performance at work which I did not agree with it. That’s why I appealed that decision. At the point which I was told immediate dismissal after appeal hearing, I think it may be actually because of my pregnancy and maternity related matters. It was also a part of claim in the ET. I did not mention it here because it was another complicate issue.

Sorry to be very blunt here but were they "not helpful" because they were giving you correct information that was not what you wanted to hear?

ACAS are not lawyers and they are not on your side. They are not on the employer's side either but attempt to be neutral arbitrators. 

It is sometimes said that "a man (woman) who is their own advocate has a fool for their client". That is not being rude, it is simply because it is very difficult to be objective.

I am not saying you don't have a case. However you need to sit down with a lawyer and get their view on whether a) you have a winnable case and, if so, b) whether it is likely to yield you sufficient compensation to be worth the stress involved in fighting it. Unless the employer settles early or you drop the case it will drag on for maybe a year or more due to the current situation. Are you prepared for that with a new baby?

At the very least try and get a free (or reduced fixed fee) half hour appointment with a solicitor. Spend some time setting out the facts (as emotion free as possible) clearly on a sheet of paper before the meeting.

Marcon

confuseddotcodotuk said:

TBagpuss Thanks for your comments. I have talked to ACAS. I did not feel that it was helpful. The ACAS just wanted to close the case without understanding the issues.

was another complicate issue.

As two of us have now said, just because ACAS did not tell you what you wanted to hear does not mean they did not understand the issues.

If you do decide to proceed to a tribunal, the tribunal will definitely be keen to get on with it and resolve the case - but if you were unable to ensure that ACAS understood the issues, how will you cope at a tribunal, particularly if the other side. has professional legal representation?

confuseddotcodotuk

I have already got the initial legal advices. If you do not get the solicitor, you would never know how strong or weak the case is. I clearly know what ACAS stands. I was not blaming them. It is just not enough for my case.
The difference is the employer or their solicitor cannot have the ignorance attitude in front of judge. It was not just about the owe. The employer have done something unfair and they did not admit it at all. I have discussed with them for a couple of times before contacting ACAS. It should have been easily resolved by paying back the own and apologising the mistakes they made with some reasonable explanations. 

Marcon

confuseddotcodotuk said:

I have already got the initial legal advices. If you do not get the solicitor, you would never know how strong or weak the case is. I clearly know what ACAS stands. I was not blaming them. It is just not enough for my case.
The difference is the employer or their solicitor cannot have the ignorance attitude in front of judge. It was not just about the owe. The employer have done something unfair and they did not admit it at all. I have discussed with them for a couple of times before contacting ACAS. It should have been easily resolved by paying back the own and apologising the mistakes they made with some reasonable explanations. 

If you're determined to go forward to a tribunal, maybe a mentor would help: https://pregnantthenscrewed.com/tribunal-mentor-programme-to-help-you/