Section 100 (1) (c)

[Bristol_1]

Hi All,

I want to make a claim under Section 100 (1)c for constructive unfair dismissal.

In beginning of April I brought to my employer’s attention, by reasonable means, circumstances connected with my work which i reasonably believed were harmful or potentially harmful to health or safety. The problem is that where I worked had 2 health and safety representative. One had left in early February. The other had left beginning of May*. I needed to raise a grievance about this health and safety concern and speak up about wrongdoing in the company regarding this same issue and another unrelated matter. For all these reasons, it felt the best thing to do is not go to the representatives and go to the employer instead.

does that sound reasonably practicable for why I did not raise the concerns via the representatives?

* I found out officially days before he left that he was indeed leaving- maybe due to redundancy, whatever the reason I’m sure it wasn’t voluntary.There were rumours well before hed lefr that he was leaving though.

Thank you for your assistance.

[atticus]

Have you left this job? If so, what was your last day of employment?

Also, how long were you employed?

[Retromau5]

Does your former employer have a policy for speaking up / whistleblowing?

[Bristol_1]

Have you left this job? If so, what was your last day of employment?

Also, how long were you employed?

yes I left on the 30th July , started Acas no avail. Got my certificate. Trying to fill in my ET1 form now.

I was employed for just under a year.

[Bristol_1]

Does your former employer have a policy for speaking up / whistleblowing?

yes, it states I should speak to the Managing director if I suspect the company of any wrongdoing and if I’m not happy with the outcome to take my concerns to the relevant organisation.

I could not be bothered reporting them I just walked out when I was finally informed of the outcome, I just felt like my collleagues and I were at risk of harm so I removed myself from the situation.

[atticus]

On that information I think you have a problem on 2 counts. 1, not having completed 2 years' employment, so you do not qualify for the right not to be unfairly dismissed. 2, not having commenced your Tribunal claim within3 months of the effective date of termination of your employment.

[Bristol_1]

On that information I think you have a problem on 2 counts. 1, not having completed 2 years' employment, so you do not qualify for the right not to be unfairly dismissed. 2, not having commenced your Tribunal claim within3 months of the effective date of termination of your employment.

but I thought there is not qualifying period for automatic unfair dismissal under section 100 (1) of the ERA?

also I did got through ACAS first, I got my certificate 20th September. I believe I have until 5th December to make my claim.

[atticus]

Tagging our employment expert ULA for further comment

[Bristol_1]

Tagging our employment expert ULA for further comment

Thanks, ULA would appreciate clarity on the above. Mostly I want to know if my arguments under s100 (1) (c) (ii) are reasonable.

[Retromau5]

If you're original health & safety compliance qualifies as a public interest disclosure then I believe it a day one right (you don't have to be employed for 2 years to make a claim). The complaint will have had to have been made correctly though, and the threshold for whistleblowing claims is quite high as I understand it.

[ULA]

I just need to get some facts correct first before providing any advice.

Where you dismissed or did you just leave your employment? I need to understand the specifics of your leaving your employment.
If you just leave did you give the requisit notice?
Who specifically did you raise the H&S issue to and was this I writing or verbally?
Did you raise a grievance regarding the H&S issues?
If so what was the outcome and if not upheld did you appeal?

[Bristol_1]

I just need to get some facts correct first before providing any advice.

Where you dismissed or did you just leave your employment? I need to understand the specifics of your leaving your employment.
If you just leave did you give the requisit notice?
Who specifically did you raise the H&S issue to and was this I writing or verbally?
Did you raise a grievance regarding the H&S issues?
If so what was the outcome and if not upheld did you appeal?

1. I left. I walked out. I felt like the risk of serious injury to myself was too great.
2. I did not give notice. I left immediately. I sent them an email saying I was leaving immediately and what for.
3. I raised the H&S issue with the managing director in writing in the form of a grievance and inline with the company’s whistleblowing procedures
4. Yes
5. I raised the grievance in April, after chasing it up twice in July they told me the matter has been closed. The reason being they had instructed someone to inspect the site at an unknown time. No one came to inspect my site- I would have know if someone had visited my site. They did not follow any recognisable procedure, I couldn’t understand how they’d made this decision without inviting me to a hearing? I felt I couldn’t appeal as I’d had no idea what even happened so I walked out as I felt I was at serious risk of injury and they clearly weren’t willing to do anything about it. The delay between April to July I thought was reasonable given this is a small and backward run company but the clear breach of the company grievance procedures was low even for them.

I hope to rely on their conduct regarding the grievance to be a fundamental breach of the implied terms of the grievance procedure/ mutual trust and confidence. The other problem is that I do not have a contract- so I can not rely on a breach of the expressed terms.

One of my claims is under s100(1) c ii. I wonder if the reason why I chose not to bring my concerns to the attention of H&S representatives will be seen as reasonable …

Thank you for your help ,

[Retromau5]

On point 3 & 5. Grievances are usually personal complaints that affect the person submitting them, where as for a complaint to qualify as 'whistleblowing' it needs to concerns people other than the person raising the complaint, such as a group of employees or the general public (hence Public Interest Disclosure). So if your complaint is a public interest disclosure, I'd stop referring to it as a grievance.

Also, if it was being treated as whistleblowing / speak up, that would be investigated independently and there is no requirement for them to invite you to a hearing as the grievence policy doesn't apply. That could work in your favour.

And just a question. If you don't have a contract, what is the agreement between yourself and your employer?

[Bristol_1]

I had a previous contract but the duties job title and pay was different. I assumed when I started my new role the old contract had ended. They never gave me new contract.

[Retromau5]

Now might be a good time to request a copy of your contract then. If they refuse or ignore a simple email request you can ask for it in a Subject Access Request (SAR) which they have an obligation to respond to within 30 days. There's no need to explain anything about your old contract or that you were supposed to get a new one, just simply request a copy of your employment contract which you worked under at the time your employment ended. The rest will be up to them to work out, if they haven't done what they are supposed to then that will be their problem.