Unfair dismissal/ claim for payment in lieu of notice

[Lynnzer]

Background:
We are a small shop with 6 employees. Most of them are beyond State Retirement age and are employed as shop assistants..
One particular member of staff aged, 69 suffered serious back problems that resulted in an operation some weeks following her absence for the injury.
At this stage I emphasise that her injury wasn't caused as a result of her work. Her contract was as a part time employee doing only 2 days a week which was to be agreed on an ad-hoc basis between myself and her, as circumstances demanded.
Her work is of a nature where she needs to climb stairs several times a day, often several times an hour, carrying items of stock between the shop showroom and the stockroom upstairs, moving stock around that is often quite strenuous and bending, stretching and lifting to reach stock and assisting customers often at ground level bending on her knees when they try on shoes and need alterations to be assessed on the length of dresses.
Due to the nature of her back injury her medical status was incompatible with her duties and it would not have been possible to allocate a less strenuous job as there just isn't one.
After an absence of some months when there was no indication that she was ever going to return to work she was given her P60 for the year just completed and a P45 to terminate her employment. Her period of absence started on 27th September 2010 and she was given her P45 dated 1st May 2011.
Her holiday and sickness pay was calculated and paid to her.

She is now proceeding a claim for unfair dismissal together with a claim for payment in lieu of notice for 5 weeks and holiday pay of another week and has started proceedings for an Employment Tribunal.

At no time did this employee even bother to provide a medical certificate (sick note) to advise of her illness/injury in compliance with the terms of her contract.
I was partially aware of her medical status as I run the shop on a very friendly basis, each member being treated more like family with every one of them being given Xmas and birthday gifts, Easter bouquets of flowers etc.
I often do personal running around for them such as collecting them from their home to take to work or take home afterwards and arrange a Xmas night out for us all at my expense. My personal generosity to them is such that often my employees get favoured beyond my own family. I regularly move working days to satisfgy any person who needs a day off to do something, often to my own personal disadvantage. In other words I do my best to keep my staff happy.
Each year this member of staff was given a Xmas gift and card as well as a Xmas present I sent to her young grandson who visited the shop with her on occasion. She also got birthday gifts and other gifts as the year went on. Even at the time of handing her her P60 just a week or so before termination, she was given a bouquet of flowers and her grandson a gift
I never favour any member of staff any more than another and all of them are disgusted that this ex member has taken the action she has.
There are 2 things I need to seek advice on here.
Given that I didn't receive any medical certificate am I correct in saying that the holiday pay is limited to the period prior to the employee absenting herself from work with the injury, as a requirement of the employment contract is such that sick pay is only paid after a period of 7 consecutive days absence when a sick note is presented to me. I believe that the employee is claiming sick pay beyond that date up until the end of the year.
Further to that, was I wrong in dismissing this employee? I received no update on her medical condition except by word of mouth from third parties and on a personal visit by her on a single occasion following her operation. At no time was I advised that her medical status was such that she could recommence work at any stage and therefore left me with no alternative other than to terminate her employment. Was this wrong?
The Contract of Employment has a laid down procedure within it for termination, however this particular reason for termination is not a "standard" reason as this employee has never given any required reason for absence in the way of a sick note, nor given any idea of any expectation of her likelihood of being able to recommence her duties. The "standard reason" I point to is such that there was nothing within any personal circumstances that the employer could have satisfactorily improved. I mean, if absence itself was a reason, a written warning or other procedural warning could have been issued expecting some sort of improvement. However when an employee is injured to the point of not being able to recommence their employment is it not correct that I can only assume that keeping her on an unpaid basis on the books for as long as she was off work, maybe even until death, by old age, would be unreasonable.
I suppose that it may have been naive to terminate without following the terms of the contract however is it actually acceptable to terminate when the well-being of the employee is the prime consideration. I would have hated to take the employee back (although it's unlikely she would have been able to come back anyway) only to find she suffered further injury due to the nature of her duties, which potentially could result in a compensation claim of injury due to her work.

Should I have done something different to put in place a more legislative? dismissal procedure?
I think I may have also heard or read something from the Government about relaxing the enforcement on Employment law for smaller employers where such legislative requirements can be restrictive or the actio0n taken is non malicious etc. If I'm not mistaken I think they suggested a common-sense approach to unwitting breaches. Any ideas on this?

I am of the opinion that even now, some months following her operation, she would not be able to carry out her duties without potential risk to her back, bearing in mind her age. Prior to her injury she had, in fact been passing off her duties to other members of staff in the shop when it came to her being required to do anything requiring some effort.

Would there be any mitigation by referring to the fact that all payment of her NIC's and PAYE during her employment was made by myself rather than deducting it from her wages? This would at least show that I have been generous and considerate in her employment and would be unlikely to dismiss anyone without due cause.

[teaboy2]

Re: Unfair dismissal/ claim for payment in lieu of notice

Firstly - In regards to sick pay, is it a company sick pay scheme? Or SSP, as SSP is due after 4 consecutive days (Including days not normally worked) of sickness and producing a sick note (Now called FIT NOTE) is not a satutory requirement and is generally only needed if requested by the employer after the 7 consecutive day of sickness only - In this case you were aware of her medical condition and that will likely be argued as reason for not needing a Fit Note along with the fact you never requested one from her. You also failed to pay her from the 4th consecutive day off her SSP, as required by law to do so, so she is entitled to claim that am afraid, though she is only entitled to 28 weeks SSP.

Though in this case due to the amount of time of and the fact it was for a back injury i feel it was wrong for the employee to have not been signed of by the doctor, though your failing to request one will play a big part in deciding this.

The problem is, you did not follow disclipinary procedure where you should have requested an investigatory meeting with the employee, in writing informing them the reasons why you are wanting the meeting i.e. poor attendence and failure to provide a sick note. As a result of this you completely bypassed procedures which has indeed led to the employees unfair dismissal. IF you had held a disciplinary meeting, and followed the disciplinary procedure fully, then you would have beable to dismiss her on capability grounds. But as none of that happened then it is a strong case for unfair dismissal.

I know its not what you wanted to hear, but thats the law am afraid. Though there is a way of correcting the issue, and that is to offer to reinstate her as an employee, pay her any moneys that she would have otherwise been due if she had not been dismissed (which will be a hell of a lot cheaper then losing at ET). You will also need to carry out a risk assessment on the work she does (also request from the employee a letter from her doctor detailing what parts of her job she can do and what she maynot beable to do). Then simply see how things go, and if her work is not upto standard, then you should look at capability.

Though the simplest option would be to make an offer for Full and final settlement prior to this being heard by tribunal.

As for NIC and PAYE, well if you weren't paying her any wage of sick pay then there should have been no NIC or PAYE to pay - can you provide more details on that?

As for "the Government about relaxing the enforcement on Employment law for smaller employers" well i doubt that will actually happen as it will result in a two tier system and lead to more cases of unfair dismissals and breaches of employement laws plus alot of employers will simply hide behind it. So i would not pay much attention to that.

P.s. Forgot to mention, if the company has legal and/or liability insurance it may be worth contacting the insurers to see if they will cover you at ET and your legal Costs or that of your settlement costs.

[CleverClogs]

Re: Unfair dismissal/ claim for payment in lieu of notice

I know its not what you wanted to hear, but thats the law am afraid. Though there is a way of correcting the issue, and that is to offer to reinstate her as an employee, pay her any moneys that she would have otherwise been due if she had not been dismissed (which will be a hell of a lot cheaper then losing at ET). You will also need to carry out a risk assessment on the work she does (also request from the employee a letter from her doctor detailing what parts of her job she can do and what she maynot beable to do). Then simply see how things go, and if her work is not upto standard, then you should look at capability.

Though the simplest option would be to make an offer for Full and final settlement prior to this being heard by tribunal.

Or close the business, telling the remaining staff that the decision had been prompted by the likely costs of unable Mabel's claim.

[charitynjw]

Re: Unfair dismissal/ claim for payment in lieu of notice

See 'When is a dismissal fair?'

http://www.acas.org.uk/index.aspx?articleid=1797

[teaboy2]

Re: Unfair dismissal/ claim for payment in lieu of notice

See 'When is a dismissal fair?'

http://www.acas.org.uk/index.aspx?articleid=1797

Just to add to the above for clarification - The above is only deemed fair if the correct disciplinary procedures have been carried out and followed correctly.

[Lynnzer]

Re: Unfair dismissal/ claim for payment in lieu of notice

I didn't think the following things were relevant but it appears they may very well be so here's some more info to work on.

Following her operation she visited the shop and told my wife that having had the spinal problem and fused vertebrae operation that she didn't think she would be able to work properly carrying stock around, going up and down stairs as she would would need to hold the handrail. This was in front of another member of staff. She was also seen to be weak and frail at that time.

When my wife told me of this I sent out a letter and told her of my concerns that she may not be well enough to continue/return to work and that I would need a doctors report as to her medical situation and prognosis of health status. I said that bearing in mind that although age was not a relevant factor in any employee's position with us, she may decide not to continue and to retire instead.

I asked her to provide a doctor's report if she did want to continue and because of the need to replace her for operational purposes if she did decide to retire she was asked to do this within 3 weeks. Naturally I advised her that any payment for a report would be settled by ourselves if she decided to continue.

I also told her that if she did want to continue but needed more time to obtain a report then she should let me know within the 3 weeks I gave her, otherwise I would take it that she had made the decision to retire and this could be done without any formal notification as we know each other on a personal friendly basis far better than needing formal notice.

She only lives 200 yards away so she could drop in and inform us any time she wanted if needed.
No response was received so we assumed that she had taken the decision to retire. She was 69 years old after all.

Anyway, I'm now in possession of the paperwork that has come in from the shop where it was sent. I'm not a vindictive sort of person but this whole affair has really soured me after all the things we have done for her in the past. She is really pursuing a vexatious, vindictive and opportunistic action.

So looking at the paperwork there are LOADS of things wrong with it.

1st of all the action is being raised against my wife by name and a company that doesn't exist. To give an example the company is Ltd and is shown thus ie, joe bloggs Ltd. She has made the claim against wife followed immediately afterwards by Joe Blogs, ie Mrs Etc Etc fred blogs fashions. So she has the wrong employer.
Then the post was addressed wrongly. It should be sent to the company registered address but instead went to the shop and even the address for this was wrong.



At this time I assume you all have details of the normal Claim form sent out by the Tribunals service. If not I can copy one in for you.


She has ticked the YES box on both sections 3.1 and 3.2 of the claim form therefore this makes for a confusing complaint.


Then she has not ticked anything on section 3.3 or 3.4 which effectively means there isn't a confirmed complaint for dismissal or for other reasons.


She hasn't completed sections 3.5 to 3.7 either. This would support a non claim for reasons other than dismissal by the non completion of Section 3.4.


Section 3.5 to 3.7 are about the attempts to have this matter resolved by negotiation with the employer. She has made no attempt to contact us and has not completed any of the required tick boxes in these sections.
She has given no reason as to why she has not attempted to remedy this matter with us before going in with all guns blazing straight to Tribunal.


As I understand it, there is an obligation on her to attempt to reconcile this matter before going to Tribunal, (it says so on the form). She has not done this so has failed to fulfil her own obligation.


Section 5.7. She hasn't ticked a box that says what she wants the outcome to be should she win the case, ie reinstatement, etc


She is claiming for 5 weeks pay in lieu of notice plus a weeks holiday pay even though she hasn't ticked the box at section 3.4 advising of this. In fact taking the claim form at face value there isn't specific claim lodged at all and how are we expected to mount a defence against a non-claim. Nor is it up to us to correct her and ask for clarification, surely?


All of this apart, the copy of this claim is so extremely faint and obscure that it really doesn't satisfy proper service as far as I'm concerned.
Service cannot be said to have taken place due to the incorrect address anyway.
Following on from that little lot, this is the way I would like to play things.
As the employers details are incorrect, and the address for service is also wrong both in location and in the spelling and confusing nature of this spelling I have in mind to completely ignore this matter entirely and let her win by default.



This will naturally be the result of failure to respond to the claim. However since the correct employer is not the person/company she has entered, once details of her successful claim come through I would at that point ask for the decision to be set aside due to reasons of non employment by the named person.


If she then lodges another complaint to the correct address and employer she would have timed out for making such a claim.
I would love to allow her to think she has won this case then have the rug pulled out from under her.
Maybe not ethical but is it a logistical possibility?


If this isn't likely to succeed I would like to offer her job back, knowing that she is still unable to carry out her duties ( I saw her with a walking stick around town earlier this week). As she would then still be on the sick I am then in a position to serve her notice of 5 weeks for length of service with full pay of Ł0 a week.


Quite frankly, this shoddy claim was processed through ACAS and accepted by the Tribunals Office in Newcastle. It's quite obvious there is a complete lack of scrutiny of the claim by either of these offices.

Also the many mistakes in the completion of the claim form that are of a nature that makes it impossible to defend this action.



I mean, we have no idea if she is making a claim for unfair dismissal, constructive dismissal or claiming for other reasons, even though she has detailed the amount of claim she is making for 5 weeks pay in lieu plus a weeks holiday pay.


That's about the full story really. As far as I'm concerned the non response to the request for a doctors report gave me leave to assume she had decided to retire and if she had only taken the necessary action this would never have happened.

[SpringerSpaniel]

Re: Unfair dismissal/ claim for payment in lieu of notice

Incapacity for the relevant work is a potentially fair reason for dismissal under the Employment Acts.

Therefore the claim should not be for Unfair Dismissal, it should be for Wrongful Dismissal, if the correct procedures were not followed.

It may be an option to defend a claim for Unfair Dismissal as there was a potentially fair reason. You should indicate this to the Tribunal on a form ET3. If you do this, it protects your position whilst you consider other options.

You may want to consider, as has been suggested above, either i) reinstating this employee and then following correct procedure if there is a lawful reason to terminate their employement, eg incapacity, redundancy or business reorganisation; or ii) settling the claim by negotiation, whether through ACAS (who cna assist with this) or otherwise.

You may want to consider what option is cheapest, as well as the issue of risk. What is the value of the claim against your business in Ł shillings and pence ?

[Lynnzer]

Re: Unfair dismissal/ claim for payment in lieu of notice

Incapacity for the relevant work is a potentially fair reason for dismissal under the Employment Acts.

Therefore the claim should not be for Unfair Dismissal, it should be for Wrongful Dismissal, if the correct procedures were not followed.

It may be an option to defend a claim for Unfair Dismissal as there was a potentially fair reason. You should indicate this to the Tribunal on a form ET3. If you do this, it protects your position whilst you consider other options.

You may want to consider, as has been suggested above, either i) reinstating this employee and then following correct procedure if there is a lawful reason to terminate their employment, eg incapacity, redundancy or business reorganisation; or ii) settling the claim by negotiation, whether through ACAS (who cna assist with this) or otherwise.

You may want to consider what option is cheapest, as well as the issue of risk. What is the value of the claim against your business in Ł shillings and pence ?

I think you're right with this. I was already Googling for unlawful and unfair and trying to ascertain the differences between them.
First off, the financial claim is for 5 weeks pay in lieu at Ł100 per week, and a weeks holiday pay at another Ł100. In any case is a tribuanl likley to be satisfied that termination was effected by the non response of the employee to our request for a fit note/doctors report or she could simply just go into retirement without any notification if she wanted. Copy of the text of the letter is shown at the bottom.
I have no idea on how much any award is likely to be for the dismissal thingy if proven to satisfaction but as I understand it there can be no award made that would make any financial gain to the loss of income she would otherwise have earned, which in this case would be nil.
She wasn't on SSP (age) and wasn't getting company sick pay.

Is there any merit in leaving things as they stand?
Apart from all the other incorrect things on the claim, ie wrong employer details, no service to correct address and incomplete and confusing completion of the claim form, this new fact of unlawful/unfair could potentially work to our favour would it not?
If a Tribunal made judgement on the fact that no unfair dismissal took place are they empowered to make a judgement instead for unlawful dismissal?
Should the claim have been made on that basis in order to be able to proper;ly mount any defence against it?
If the reason/complaint is not known before Tribunal then we can have chance of calling witnesses for rebuttal etc and for mounting an informed defence?
__________________________________________________ ____________
Dear ****,
It was good of you to drop in and see ****(my wife) after your operation which hopefully has been successful in easing the pain you have suffered.
During your visit to discuss things with her, you told June that you didn't think you could do your job anymore since this would need you to hold the handrail on the stairs each time you took stock up or down them to give you some support. Naturally I think you would be the first to appreciate the impossibility of this
situation since constant visits up and down the stairs bringing and returning stock to the stock-room for customers being attended to is an essential and frequent part of the duties.
I am therefore worried that we may need to consider your ongoing status with ourselves and your ability to carry out the duties required due to ill health reasons.
**** mentioned at the time of your discussion that she was concerned that due to the nature of your back injury and subsequent operation that you would find it difficult to take up employment again as it involves duties which will inevitably put stress onto your back and may exacerbate your condition.
As you are aware there are no duties within the shop that you could otherwise be employed in, as being an active shop each sales assistant is dependent on the others to fulfill all duties and not just a part of them.
All such duties involve lots of lifting, stretching, bending, kneeling and carrying stock up and down the stairs.
Had this been a cash and carry sort of shop where customers just bring things to the till for payment you perhaps could fulfill that sort of role as cashier but as you know, this is a personal service shop where each customer is attended to by an assistant fetching stock to them as needed and returning it when finished with.
In actual fact the till may not ring for several hours between each sale anyway, if at all if the day is slack.
Any lack of ability to perform the full functions of your duties could not be mitigated by passing off to other assistants who each have their own customers to attend to and who may already be “doubled up” with serving more than a single customer at the same time.
We don't have any age problems with any member of staff and as you know M*** B*** is well over 70 years old now and still going strong. We believe that age is something that gives a certain credibility to the sales of ladies fashions designed for the more mature lady however we do have to pay heed to the part that age will play in the ability of any employee to carry out their duties as we do not wish to put any of them in a position whereby they could potentially cause themselves serious injury.
As your own back injury has resulted in a vertebral fusion operation I believe you may be put at risk in any duty involving the work required of an employee with ourselves.
Bearing in mind the normal age degradation of the spine I feel it would be wrong of us to allow you to make any return to work without some medical assessment and a verification that your health would not be affected. We would feel awful if you returned to work and suffered further injury and of course we have a
duty to our Insurers to ensure safe working practices to avoid potential compensation claims.
I appreciate that you are increasingly more involved with the care and looking after of your grandson and taking breaks in the caravan, so are maybe thankful of the leisure time you now enjoy, however we are more than willing to keep your position open and would welcome you back when your injury and operation are
behind you and you are fit to return to work. However as a responsible employer we do really need to know what the likelihood of this is given that you have already told June that you didn't think you could do the work. Keeping the position open without end would be nonsensical though if you are unlikely to ever be fit
enough to return. We need to be able to move on and do so with the utmost respect to you and the best interest of the company.
The shop needs every member of staff at busy times of the year, especially in these early months, so the absence of any one of them is a strain on the others. Any long term illness or inability to perform the duty required as an assistant in the shop means that we need to consider filling the gap by recruiting someone
else. The detrimental effect of having customers queue for attention then leaving before they are assisted is one which can be costly to a small business such as ours so a full complement of staff is essential in busy periods.
At no time during your absence until your meeting with June have we considered that we may find that we have to part ways as business partners. Had we we wished to do so we could have given notice during the essentially slack period before and after Xmas while you were still on sickness absence. It has always been our intention to allow a return to work once you became fit enough to do so but since you have expressed your own concerns at your inability to do your duties it's time we visited this situation for clarification by yourself as to your intentions.
Could you please obtain a report (a fit to work certificate) from your doctor as to your current state of health so we can assess the situation in an informed manner. We need to have this within 3 weeks of this date so as to be able to recruit someone else if you cannot continue in the job.
I appreciate that this may involve some small personal cost to you and we will pick up this cost if you decide to go ahead with this. If however, you feel that you do not wish to have this done and are satisfied that you do not wish to continue in the job you need do nothing about this at all and this would be accepted as notice
from yourself that you are now taking retirement. There's no need to make a formal notification. I think we know each other better than this by now.
Since we do not have a retirement policy in practice and you have already passed beyond State Retirement Age we have no problems in accepting that your wish to not continue with employment is an acceptance that you wish to retire and you need make no notification of this. If this is your decision then all of our best wishes go with you.
If you do feel that you wish to take up your position again and need to take more time to obtain a doctors report then just let me know as soon as possible within the 3 weeks.
As I said, you are more than welcome to return if a doctors report indicates that you are fit to do so. Naturally if a doctor advises against it then I'm sure you will not even consider it yourself.
In the meantime, we all at the shop wish you a swift return to health and a happy Easter with your family.
I hope this letter doesn't offend you as this is not my intention, however as the Company Secretary I do have a responsibility to ensure that each employee is given the necessary duty of care they deserve and to assist them whenever I can in their role as employees of the company.
Whichever way you want to proceed with this will be fine with us and will have no effect on our own personal friendship that we have enjoyed over the time we have known each other as families rather than as an employee/employer.
Best wishes

[strangewayofsavin]

Re: Unfair dismissal/ claim for payment in lieu of notice

dear Lynnzer, fact of life, if you employe older folk, they cannot do the work of an 18 year old, if you wanted to keep the wage bill down, perhaps you should have employeed under 20's or volounteers, to expect an over 60's to run up and down stairs several times a day is asking for trouble, sorry for being blunt but get real.

[Lynnzer]

Re: Unfair dismissal/ claim for payment in lieu of notice

dear Lynnzer, fact of life, if you employe older folk, they cannot do the work of an 18 year old, if you wanted to keep the wage bill down, perhaps you should have employeed under 20's or volounteers, to expect an over 60's to run up and down stairs several times a day is asking for trouble, sorry for being blunt but get real.

Thanks for that very illuminating reply.
Fact of life: older people are often still very capable of working well after retirement age, have boatloads of experience, generally have a settled family life and don't usually get pregnant at this sort of age.
It isn't about keeping the wage bill down at all, in fact I find the older lady is more experienced and has more sway with customers who are mostly middle aged.

Now, to anyone else who may care to chip in with the actual topic merits, does anyone know of a requirement to serve the normal termination notice as regards an age related retirement as I'm more convinced this is the true situation. Would there still be an entitlement to statutory notification, in this case of 5 weeks, when an employee is retiring well beyond SRA.

[CleverClogs]

Re: Unfair dismissal/ claim for payment in lieu of notice

It surely cannot take as long as five weeks to organise a raffle for her job.

[Lynnzer]

Re: Unfair dismissal/ claim for payment in lieu of notice

Thanks for the very illuminating replies/responses to this subject.
I have had a solictor soliciting by PM and nothing else of any merit.
I can update this to the effect that my professional trade body has legal cover for this situation that is a part of the package of membership. I've put it over to them now.
I would have liked to take this on myself as I just love a good fight and have even won at a VAT Tribunal against a solicitor from HMRC as well as numerous appeals through the PATAS system for parking and other non criminal traffic offences. I've also chewed the arse of such organisations as Expedia and won cases against them where they were adamant of their rights.
I have done my homework on this particular topic and know that the legislation requires special knowledge as there is a transient effect to the retirement of employees which obscures the whole process.
I am subscribed to Pepipoo for traffic things but to be honest this forum seems to be a graveyard in comparison.
I've seen comments from some on the ineffectiveness of CAG but at least people do chip in with ideas on there.
I guess if I ever find a need to retire and do nothing then I can become more-or-less active on here and sit back to watch the grass grow around my armchair and 3D TV.

[teaboy2]

Re: Unfair dismissal/ claim for payment in lieu of notice

Lynnzer.

I can understand your bitterness, but ask yourself one question - Who brought about this situation?

Thats right your own lack of following the correct process for dismissing an employee, you failed to give her formal notice of your intention to terminate her employment. A letter asking her of her intention giving her 3 (or how ever many weeks) to reply, to which she failed to do, should have just given her 7 days to reply and then followed by a formal 5 week notice.

Are you certain the person PMing you is a solicitor? I have known many cases where people have been misled by others, who get a kick out of pretending to be something they may not actually be.

My response on here was constructive, so your comments is a smack in the face to me, and despite the alleged error in her application, you can not treat a tribunal claim like a court claim, as the tribunal maywell ignore the errors in her claim (in full knowlege that the the claimant is a layman and elderly) and make a decision based on the facts of her dismissal. Just because she is claiming unfair dismissal does not mean the tribunal will not rule it as wrongful dismissal as they could well do. I appreciate the responses have not been what you wanted, but perhaps instead of boosting about your success you should look at the reason why the responses have not been what you wanted, as its safe to say that we all have alot more taste of success then what you yourself have, myself in particular with employment matters like this, and i do not believe you have much chance of winning this.

The best option for you will be to reinstate her, because even with legal cover covering your costs, if you happen to lose (which i think you will) then the publications in the local media will be bad for business. The lady herself is only wanting to be reinstated and paid what is owed to her. You even failed to pay her SSP for the period she was entitled to it - that itself is a breach of contract and could be seen by the tribunal as constructive dismissal - Such breach of contract would have took place on the 4th day of her absence if you had not paid her SSP, therefore before any letter you sent her.

Yes you had success in other matters, but that doesn't mean you will win all the time and i get the impression given your response that your in denial of there being any chance of you losing. Like i said, theres a reason myself and other employment experts here have not given you the response you were looking for, and that, in my case, is because i very much doubt you will win. Hence why i suggested you reinstate her and follow the correct procedures under capability. But then theres nothing stopping her working the till and having someone else bring the stock downstairs and stocking up the shelves, is there?

And as for CAG - Well your talking to one of the employment advisors that used to be a regular employment advisor there up until fairly recently and so did alot of other advisors here that were wrongly treated or had, like myself, false accusations made by CAG site team against them for which legal action is being considered.

[Lynnzer]

Re: Unfair dismissal/ claim for payment in lieu of notice

Without filling up a Quote page, I'll respond as I can to the answer above.
First, the response I got by PM was from a solicitor, soliciting, and I was given a number to call for the 1st initial free consultation.
If there are solicitors roaming the forum then it would be better if they became more actively involved in answering and guiding the forum topics so that everyone can benefit from it. I know we all have to make a living but can't anyone with knowledge impart some of it freely especially in these sort of forums?

Now onto the question of fault. If you feel able to tell me that it's all my fault then do so. I can take it. But as for following proper procedures for termination then there is also a need for consultation by using the grievance procedures set out in the Contract of Employment. Also before any grievance is escalated to the Employment tribunal it should have followed that procedure which also includes formal written notification of the complaint together with a period of 28 days to respond. There has been a failure on this and due to this fact the E.T. should not even have processed the claim. It even says on the claim form that these procedures must be taken before any claim will be accepted. So they are in breach of their own guidelines, which I also believe to be a legal requirement as well.

It's for the E.T. to decide the culpability of the employee in this respect and how it impinges on the case. From my own perspective had she seen fit to raise an internal grievance things may have panned out differently. Actually she has written on the claim form many things which are completely untrue anyway including date of termination which is 7 weeks short of the P45 being sent out after a total non response to the letter sent out to her.

I know my posts have been looonnnggggg. but the point about SSP isn't valid. She was beyond the age to receive it and had no right to company sick pay, as she had taken all she was entitled to in her first 12 weeks of sickness.

I believe my letter to her, that seems not to have been fully read or understood by you, also points out that there is no such position for anyone to take lighter duties. We don't have or need a cashier. The purchases are sporadic albeit rather large when they do occur, but may not actually happen at all in slack periods.

I had-have no intention of smacking you in the face. Your remarks have been the only ones of any worth and I thank you for the input. Remarks such as to raffling the job are inconstructive and belie the importance of the topic.

While I can't expect legal people crawling all over the place offering advice to all and sundry, it seems that those without any useful input place comments just to get their status lifted. OK by me but it's like having a bloody great big rottweiler without any teeth. All bark and no bite.

I only pointed to my earlier successes to show that I'm not afraid of taking a case myself without referring it to legal assistance. I haven't won every case I've defended or taken on. In fact I was kicked rather hard for daring to defend a speeding charge (36 in a 30) when I just knew I hadn't been speeding and even had Home Office confirmation that the device used against me hadn't been tested or approved. The CPS brought in an expert witness, an ex copper who lied through his teeth, and I didn't have a chance against a lying policeman despite the fact that it is the Home Office that actually approves these things and had written a letter telling me it hadn't been approved.

So, onto the name of the company. If the name of the respondent is wrong the the claim is wrongly filed.
I had a civil claim laid against me some time ago with the same details wrongly filled out on the claim. The basis of the claim itself was wrong anyway but I let it go through undefended and take a default judgement. Once that came through I wrote to the court and had them set the judgement aside for wrong details. They agreed as they told me they cannot expect a judgement against anyone that's meant to be against someone else. I would have thought that this was a basic principle in law that no Tribunal could waive, even in a L.I.P. claim.

Anyway, thanks for the useful and pointed remarks in your responses thus far but as I said, I've now passed this to the legal assistance people of my trade membership .

I will post back on the result to inform you of the decision sometime in November.

[teaboy2]

Re: Unfair dismissal/ claim for payment in lieu of notice

Well i wish you all the best on this.

As for grievance procedure, well you had terminated the contract therefore the employee can not formally act upon a contractual internal grievance procedure that is part of a contract that has already been terminated and therefore no longer exists.

Also regarding SSP, well there is no upper age limit - The previous upper age limit of 65 on statutory sick pay was removed by virtue of sch.8 to the Employment Equality (Age) Regulations 2006 (SI 2006/1031), which amended the Social Security Contributions and Benefits Act 1992. - So yes she was entitled, as far as am aware, to SSP. Therefore (just incase you or your legal representatives are researching online) the Social Security Contributions and Benefits Act 1992 version avaliable online is that of the original version of the act when it was first enacted and does not show any admendments that have been made since it was originally enacted.

Also i wouldn't treat errors in a tribunal claim in the same way you would a court claim, they are too different things. Yes she got the company name wrong, but whether the tribunal will overlook this and allow the claim to go ahead, is up to them. A tribunal will be more interested in the facts of the case then the errors made in filling out the claim form.

As for the PM Advertising Legal services, well all such PM's and the senders username should be reported to the Site Admin. I for one do not condone the use of PM for giving out legal advise or advertising. The only exemption i have made is when a person comes to me asking for advise and if they have an open thread on the matter.