Unfair dismissal/ claim for payment in lieu of notice

[Lynnzer]

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

I learn lots from useful people like you. I didn't know the SSP requirements had changed. Never mind. She doesn't qualify anyway. She doesn't earn above £100 a week and hasn't provided a sick note in accordance with her contract.
Phew.....

Her employment wasn't terminated until some 6 weeks after she says she was dismissed. She had ample time to make a formal representation for a Grievance Procedure hearing.

[WendyB]

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

This may seem a stupid observation, but have you spoken to ACAS about this? They may be able to advise. Also, the last time I had dealings with an unfair dismissal claim, there was a mediation service that could be used before it actually went to Tribunal, it may be worth using this, or attempting to use it - she may decline to use it but at least you would be seen to be doing.

[Amethyst]

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

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?

Thanks for letting us know about this. I'll look into it as it is not something that should be happening.

[CleverClogs]

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

First, the response I got by PM was from a solicitor, soliciting,

At least he wasn't importuning.

[Lynnzer]

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

This may seem a stupid observation, but have you spoken to ACAS about this? They may be able to advise. Also, the last time I had dealings with an unfair dismissal claim, there was a mediation service that could be used before it actually went to Tribunal, it may be worth using this, or attempting to use it - she may decline to use it but at least you would be seen to be doing.

I haven't yet although they have tried to contact me. I know this would be to my favour but sine this woman is really taking the pi$$ I don't want to tread down that route initially.
It's an option I can consider later on but first I need to see what the legal team think first.
I do know she's been back to her old employer of 5 years ago and sought re-employment there but I have to the opinion she's building up her feasibility for tribunal when she's asked what she's done since.
In any case she knew they wouldn't have her back at her age (without making age the issue).
She doesn't need the money anyway. She has every single pay packet she's ever had from us still unopened in her drawer.

[CleverClogs]

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

How do you know what's in her drawers?

[charitynjw]

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

This may seem a stupid observation, but have you spoken to ACAS about this? They may be able to advise. Also, the last time I had dealings with an unfair dismissal claim, there was a mediation service that could be used before it actually went to Tribunal, it may be worth using this, or attempting to use it - she may decline to use it but at least you would be seen to be doing.

ACAS will be automatically involved for mediation in any claim which reaches the Employment Tribunal.

[Lynnzer]

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

Form ET3 now submitted together with a Strike Out application as follows.
Only time will tell what the result will be.



I wish to make a submission that the case *** v *** Fashions be struck out.
The reasons for this request are given below.

1. *** Fashions, or J** R*** *** Fashions, shown as being the respondent on Form ET1, ceased trading in March 2005 some months before the claimant purports to have commenced her employment with the company. The claimant was never an employee of that company. She was in fact an employee of *** Fashions Ltd, a company which is different in law and liability. *** Fashions still has legal liabilities for actions taken when it traded in that name as supported by the need to keep Commercial Liability Insurance documents for several years. To lay this claim against *** Fashions, or J** R****would be wrong in law.
2. If in the opinion of the court the claimant's action should be allowed to proceed against *** Fashions Ltd, different from the respondent named on Form ET1 and which is clearly shown on the Claimant's Employment Contract, this claim is laid before the tribunal with no prior notification, either written or verbal, as to any grievance or other issue from the Claimant.
3. Form ET1 is inadequately completed such that a sensible response cannot be made to the claim. Sections that are required to be completed have not been, therefore making the claim confusing in detail and requires speculation as to the gist of the complaint.
4. The meeting between the Claimant and Respondent was not as a result of any formal process. In fact the Claimant called into the shop without being asked to, or by prior notification by her. No formalities were induced, or even suggested at the meeting. This was little more than a “how are you” chat of a friendly nature rather than employer/employee discussions.
5. The claimant had very recently been discharged from hospital following an operation to fuse vertebra together for a spinal problem. She mentioned, in verifiable earshot of other employees, that she would be unable to carry out her duties at that time, which included carrying armfuls of stock up and down stairs, bending, lifting and stretching and it was suggested that she didn't return to work while she recuperated, for obvious reasons.
6. At no time was she given notice of termination. This can be substantiated by witnesses to the discussion. In fact the six month length of her absence gives substance to the fact that the respondent was quite prepared to hold her position for her until she returned to work fit for her duties. If she was to have her employment terminated it would have been done when the length of her absence started to cause staffing problems.
7. During this informal meeting, and following the recommendation that she didn't return to work while she recovered from the operation the claimant asked when she would get her P60. Due to the financial year end when all employees get these by law she was told it would be posted to her shortly, when prepared, and that her holiday pay due to that time would be paid together with a refund on an item of clothing she had bought earlier. This was nothing more than normal practice.
8. It is my belief that her ignorance of the difference between a P60 and a P45 gave her the impression that her employment was being terminated when in fact this was not the case. She even mentions the notification of a P60 to be sent to her, in her ET1 submissions.
9. Given her wrong assumption on that basic fact, even if she believed this to be the case, she should have induced the Mandatory Grievance Procedure before taking further action. The initial ad-hoc meeting was not part of any disciplinary or grievance proceedings but if any grievance was taken by the claimant she had a contractual and mandatory statutory requirement to raise the matter in a formal grievance procedure. All employees have a copy of the Employment Contract setting out the action to be taken in cases such as this.
10. The form ET1 gives no clear indication as to whether the claimant is suing for unfair dismissal as a direct result of her wrong assumptions that her employment was being terminated or whether she is claiming for constructive dismissal. She has stated her date of termination as the 30th March 2011. No termination was made by the respondent before or at this time, or immediately following it, so it may well be that a case of Constructive Dismissal is her consideration. She will be at a loss to produce a P45 dated for the 30th March and we certainly don't have a written notification of resignation from her.
11. We have received no word on any of the matters prior to the receipt of the ET1 Claim, even when personally taking Easter cards and gifts to her home for herself and her Grandson beyond the date she says her employment ceased, so are at a loss to understand her claim. We find ourselves in a position of uncertainty as to our response to the claim. I am of the opinion that certainty in legal matters is our right so we are disadvantaged by the incorrect and incomplete ET1.

It is our belief that this case has little prospect of success due to the inaccuracies and incomplete details of the ET1, nor is there any merit in its substance.
The Claimant can have no evidence to submit before the E.T to substantiate any dismissal at or around the stated date, since no dismissal was made.
The failure to follow the Mandatory Grievance Procedure invalidates this claim.
The named respondent is wrong and any resubmission of a new ET1 to correct this matter would fall outside the time limit.
The core issues in this case is whether the Claimant was actually employed by the named respondent in the first place, then whether she was dismissed by the respondent, whether she resigned (Constructive Dismissal), or simply got a wrong impression of dismissal due to her lack of knowledge about P60's and their purpose. Clearly no evidence exists of either a dismissal by the employer at that time, a letter of resignation from the claimant or anything of any substance to validate her claim for dismissal of any sort.
For these reasons I ask that a Strike Out is given due consideration.
Should this case be allowed to continue we respectfully request that a Deposit Order be made against the claimant.
Yours sincerely

[teaboy2]

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

Hi Lynn

It looks good and obiviously as defendent you do not want to shoot yourself in the foot by making mention to the letter you posted here in the thread giving her a 3 week deadline or instructing her to do nothing at all if she did not wish to return to work. You also made mention as to whether it would be viable for her to return to work for you - As i feel the letter would go against you to be honest and it will be highly likely that the claiment will use the letter as a key part of her evidence against you though.

So i would not rest back with your feet up, and i would suggest you start putting your defense in order in preperation for tribunal in the event they allow it to be heard and goto tribunal. As she will use the letter against you and i have a feeling it is the letter that led her to take the action she has taken to be honest.

Note the letter itself could be deemed a formal letter and she will probably try to argue that it was such too.

[CleverClogs]

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

The named respondent is wrong and any resubmission of a new ET1 to correct this matter would fall outside the time limit.
The core issues in this case is whether the Claimant was actually employed by the named respondent in the first place, then whether she was dismissed by the respondent, whether she resigned (Constructive Dismissal), or simply got a wrong impression of dismissal due to her lack of knowledge about P60's and their purpose. Clearly no evidence exists of either a dismissal by the employer at that time, a letter of resignation from the claimant or anything of any substance to validate her claim for dismissal of any sort.
For these reasons I ask that a Strike Out is given due consideration.
Should this case be allowed to continue we respectfully request that a Deposit Order be made against the claimant.

If you succeed, do you suppose the publicity - not to mention the public griping of your company's former employee - will be beneficial to your business?

[Lynnzer]

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

Hi Lynn

It looks good and obiviously as defendent you do not want to shoot yourself in the foot by making mention to the letter you posted here in the thread giving her a 3 week deadline or instructing her to do nothing at all if she did not wish to return to work. You also made mention as to whether it would be viable for her to return to work for you - As i feel the letter would go against you to be honest and it will be highly likely that the claimant will use the letter as a key part of her evidence against you though.

So i would not rest back with your feet up, and i would suggest you start putting your defence in order in preparation for tribunal in the event they allow it to be heard and go to tribunal. As she will use the letter against you and i have a feeling it is the letter that led her to take the action she has taken to be honest.

Note the letter itself could be deemed a formal letter and she will probably try to argue that it was such too.

The letter played no part in this apparently. According to ACAS she claims she didn't receive it. It could be, as I know she has no letterbox anyway. So as far as the ET is concerned this won't even appear in the Bundle if it does go all the way.
It seems that she has just gone off and done the deed without any dismissal actually being made or a resignation by her effecting a Constructive dismissal.
I know from past experience of a slightly different nature not to count my chickens, but I'm currently very hopeful that the Strike Out will succeed.

[Lynnzer]

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

If you succeed, do you suppose the publicity - not to mention the public griping of your company's former employee - will be beneficial to your business?

Couldn't give a toss personally.
Whichever way this goes she's going to gripe anyway. All the other staff are solid behind us and don't know why the hell she's doing this. As far as publicity is concerned it's unlikely that either a strike out or a win or lose in the ET will be of any great significance to any of the press journalsits around here and in any case the customer base is spread over hundreds of miles and even abroad via the tinternet.

In every person there is a point at which you just gotta pick up the cudgel. If we let these things go through without a fight then what's the point in opening the shop.

For the record, I was unable to secure the assistance of the Trade Association's legal dept as I had already written the letter to the claimant without first referring to them. They do have the full gist of the case though and I had a very good thumbs up from the Employment Lawyer as to the way I am conducting the case as shown in the ET3 and Strike Out letter. She seems to think the wrong respondent's details is critical. A minor error such as a spelling mistake may very well be corrected in the proceedings but naming the wrong respondent, however small the difference may be, is something that would normally be sufficient to halt the proceedings.
For instance, a compnay name of let's say "sam and steve's fashions" is significantly different from Sam And Steve's Fashions Ltd, however Sam and Steve Fashion Ltd would be insufficient to hold much sway by the court. The missing of the Ltd makes the respondent a completley different entity in law.

[teaboy2]

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

The letter played no part in this apparently. According to ACAS she claims she didn't receive it. It could be, as I know she has no letterbox anyway. So as far as the ET is concerned this won't even appear in the Bundle if it does go all the way.
It seems that she has just gone off and done the deed without any dismissal actually being made or a resignation by her effecting a Constructive dismissal.
I know from past experience of a slightly different nature not to count my chickens, but I'm currently very hopeful that the Strike Out will succeed.

Ahhh, well in that case then she maywell not have a case.

[charitynjw]

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

Hi Lynnzer,

In the ET3, you refer to a mandatory grievance procedure.
I don't think it's mandatory any more, though the ET will take the omission into consideration.
Perhaps teaboy could confirm this, & if so, advise on how to amend the ET3 if necessary.

[teaboy2]

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

Hi Lynnzer,

In the ET3, you refer to a mandatory grievance procedure.
I don't think it's mandatory any more, though the ET will take the omission into consideration.
Perhaps teaboy could confirm this, & if so, advise on how to amend the ET3 if necessary.

Actually your right Charity (i forgot about that)

Failure of following mandatory grievance procedure is itself not enough to prevent the claim going to tribunal, though their is a penalty of a reduction of 10% of any monies awarded should the party who failed to follow the mandatory grievance win at tribunal. Likewise if the opposite party wins then monies awarded should be increased by 10% - This is the penalty for not following mandatory procedure - Though in most cases it will usually prevent the claiment from bringing a claim, though its for the Tribunal to decide in the end and theres nothing stopping them from allowing the claim to go ahead but they will have to use the above penatlies if they do allow it. So if the employee wins, they will have a reduction of 10% in monies awarded. Should it be yourself who wins you should get an extra 10% on top of what you are awarded as a result of the employees failure to follow mandatory procedure.

So it should change or add on to the ET3 something similar too - The claiment failed to commence or follow mandatory grievance procedure if they had, the claiment would have been made aware that she/he was indeed not dismissed and he/she was still employed by the defendent (replace defendent with your company name).

Its also worth noting that the following applies for business that do not follow mandatory dismissal/disciplinary procedures:

Mandatory dismissal and disciplinary procedures
If your business does not follow the procedures correctly any subsequent dismissal will be "automatically unfair" without any consideration as to the merits of your particular case.

So basically its a doubled edged sword, with the same penalties (or worse for employers) for failure to follow mandatory procedure.