Unfair dismissal/ claim for payment in lieu of notice

[teaboy2]

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

A preparation time order?

http://www.legislation.gov.uk/uksi/2...chedule/1/made
Paras forty two to forty five

NB Note calculations.......I make the 2011 hourly rate £31, but then I'm lousy at math

It appears your calculations are spot on lol.

[Lynnzer]

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

You mean like this?


Preparation Time Order
Since I believe this claim to be ill-founded and unreasonable I submit a request for a Preparation Time Order against the claimant under S44 (3) of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
The case is without merit, totally unreasonable within the definition of S44 (3). Had she only spoken, or submitted a grievance procedure request, to the employer she would have quickly found out the true situation.
Even if she had mentioned her disapproval of her position when I took gifts to her for Easter, which she readily accepted, she would have found out that she hadn't been dismissed and this nonsense could have been nipped in the bud.


Since I have no legal representation I have had to spend many hours searching through the relevant legislation in respect of my response to her claim. The legislation is extremely complex, and even now is undergoing further change. There are so many twists and turns in similar legislation or other legal matters which reflect on the subject of unfair dismissal and even though I have spent so much time applying my limited brain power to making sense of it all I have had to put my full attention to the defence of this claim.


I ask that the Tribunal considers my request for costs against the claimant for time spent on research, drafting responses and putting my case together of 25 hours. The actual time spent on research alone has been probably double that, and time on putting together mail to the Secretary has been upwards of 5 hours, all down to having to ensure correct legislative mention was made to support my objections to the case.
Time spent for 20 hours preparation at the current rate of £31 per hour brings the claim to £775.
As a company Secretary my time is valuable in seeing to the many other issues that my position entails and this claim has been a huge distraction from my normal duties to the detriment of other things that should have been done.

[teaboy2]

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

Yep that looks good enough to me lynnzer.

[charitynjw]

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

You mean like this?


Preparation Time Order
Since I believe this claim to be ill-founded and unreasonable I submit a request for a Preparation Time Order against the claimant under S44 (3) of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
The case is without merit, totally unreasonable within the definition of S44 (3). Had she only spoken, or submitted a grievance procedure request, to the employer she would have quickly found out the true situation.
Even if she had mentioned her disapproval of her position when I took gifts to her for Easter, which she readily accepted, she would have found out that she hadn't been dismissed and this nonsense could have been nipped in the bud.


Since I have no legal representation I have had to spend many hours searching through the relevant legislation in respect of my response to her claim. The legislation is extremely complex, and even now is undergoing further change. There are so many twists and turns in similar legislation or other legal matters which reflect on the subject of unfair dismissal and even though I have spent so much time applying my limited brain power to making sense of it all I have had to put my full attention to the defence of this claim.


I ask that the Tribunal considers my request for costs against the claimant for time spent on research, drafting responses and putting my case together of 25 hours. The actual time spent on research alone has been probably double that, and time on putting together mail to the Secretary has been upwards of 5 hours, all down to having to ensure correct legislative mention was made to support my objections to the case.
Time spent for 20 hours preparation at the current rate of £31 per hour brings the claim to £775.
As a company Secretary my time is valuable in seeing to the many other issues that my position entails and this claim has been a huge distraction from my normal duties to the detriment of other things that should have been done.

?? And I thought my math was bad, lol

[charitynjw]

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

Hi Lynnzer,

Out of sheer nosiness, have ACAS been of any use at all?

[Lynnzer]

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

Hi Lynnzer,

Out of sheer nosiness, have ACAS been of any use at all?

Absolutely no use at all. They have called the shop a couple of times but have never called me at my workplace where they have been directed. Actually, I would have thought that n reading the ET1 they would have realised the huge problems with it and told the claimant to drop it. My particular attack at the CMD is to have the case thrown out due to non-compliance with Rule 3 that requires a form to completed with all relevant required information. If they allow it beyond that, I will go through the full gamut of other ammunition I hold, including wrong respondent.

By the way £775 is 25 hours at £31. I got it wrongly stated.
20 hours for research and 5 hours (increasing daily) for form filling and correspondence to the ET.
Given some time I'll post the ET1 complete for you to laugh at.

[teaboy2]

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

?? And I thought my math was bad, lol

Oh yeah, i never noticed that, but yeah how the hell does 20 x 31 = 775

According to my trusted friend Mr Calaculator, its £620 lol.

Edit - Crossed posts

Ah just so lynnser post - or posts crossed, but yeah 25 x 31 = 775 as confirmed by Mr calculator

[Lynnzer]

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

Can I ask that you look at the explanatory notes at the bottom of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
Specifically mentioned is this little point of interest, "Rules 1 to 3 of Schedule 1 provide that as from 6 April 2005 a claim must be presented using a prescribed form and that if it is not used the claim will not be accepted. The provision of certain information (“the required information “) is mandatory if the claim is to be accepted and allowed to proceed."

So can anyone tell me, what the hell is "the required information" and where can I point to this for use at the CMD.

[teaboy2]

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

Can I ask that you look at the explanatory notes at the bottom of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
Specifically mentioned is this little point of interest, "Rules 1 to 3 of Schedule 1 provide that as from 6 April 2005 a claim must be presented using a prescribed form and that if it is not used the claim will not be accepted. The provision of certain information (“the required information “) is mandatory if the claim is to be accepted and allowed to proceed."

So can anyone tell me, what the hell is "the required information" and where can I point to this for use at the CMD.

After having a quick look at the legislation i would suspect the prescribed form is as stated in Schedule 1 section 1 Subsection 4 and 5

[Lynnzer]

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

Not the prescribed form....
The provision of certain information (“the required information “) is mandatory if the claim is to be accepted and allowed to proceed."
The required information. I think I've found it so far and it includes just about all the information on Sections 1 to 5 of the ET1.
So, just how MANDATORY is it given that the very meaning of the word gives no room for compromise?
I've found a case where a claim for Disability Discrimination was thrown out as the complainant had ticked the box for DD but given no written reason for such as claim.
My case is different in that no box has been ticked to say if the claim is in relation to dismissal by the employer. The next box isn't tricked to say whether the claim is in regard to anything else other than the dismissal, ie holiday pay and PILON.
She has completed the text box for the complaint and doesn't emphasise any dismissal or make mention of any PILON or Holiday pay although she has claimed for it in Other Payments You are Owed.
So, for the sake of it I would suppose that this is directly related to the DD claim that was thrown out.
I have now scrubbed the ET1 and added remarks to it for you.

[teaboy2]

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

I notice how it states in the claim that her employer stated, " thought it be best that i not come back to work". That has only one intrepetation to me, and that is its best for you not to come back to work just yet. It is not a definitive statement of termination of employment or dismissal. But it is what it is, a simple statement of i think its best you did not come back to work - as in its best you did not come back to work for now, or just yet.

As for "said money owed would be paid and P60 sent at end of month" Will as you said lynser P60 is a mandatory statement you have to give to employers at the end of each tax year, as 6th of april is the end of the tax year then handing out a P60 at the end of march is perfectly normal for most firms. And not only that you do not give a P60 to someone thats been dismissed as is a P45 you give when employment is terminated which you have made clear in your defence.

So even if she had filled in the form correctly given the above it probably has very limited chance of being a successful claim.

[Lynnzer]

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

I notice how it states in the claim that her employer stated, " thought it be best that i not come back to work". That has only one intrepetation to me, and that is its best for you not to come back to work just yet. It is not a definitive statement of termination of employment or dismissal. But it is what it is, a simple statement of i think its best you did not come back to work - as in its best you did not come back to work for now, or just yet.

As for "said money owed would be paid and P60 sent at end of month" Will as you said lynser P60 is a mandatory statement you have to give to employers at the end of each tax year, as 6th of april is the end of the tax year then handing out a P60 at the end of march is perfectly normal for most firms. And not only that you do not give a P60 to someone thats been dismissed as is a P45 you give when employment is terminated which you have made clear in your defence.

So even if she had filled in the form correctly given the above it probably has very limited chance of being a successful claim.

It's what her claim doesn't state that is the gist of my defence. She makes no mention of being dismissed either by the employer or voluntarily by Constructive dismissal. Her written complaint doesn't really put much light onto her claim either as she could have taken the remark not to come back to work wrongly and assumed instant dismissal, or buggered off saying to herself if they don't want me back now, I'll just resign.
The many uncompleted sections are a big problem for me to comprehend.
I dug out a case that was thrown out by the ET for non completion of the claimants address as it was in non compliance with the need to complete the form with all the relevant required information. This one has so many other non completed sections it is almost a non-event. In any case, the appeal against the non inclusion of the claimant address was heard and the Judge sent it back to the ET to be heard as he considered that strict compliance to the rules was not a thing he follows and makes more play on the relative materiality of the non included information.
My case though has so many sections not completed it must make a different case altogether.

[Lynnzer]

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

Following the completion of the Agenda for a CMD I've thought about what such a meeting might achieve. It appears it's really only to progress outstanding documentation and is unable to properly consider the main issue. To that effect I have mailed the tribunal asking for a Pre hearing Review instead as follows:
Sir,
I have been informed, and have responded to a Case management Discussion notification by completion of an Agenda. This is scheduled to take place on the 9th September.
Having had time to consider the actual basis of a CMD I suspect that this is more in keeping with the actual progress of outstanding matters by either party, such as in late or no submission of documentation in accordance with the Case Management Orders and Timetable.
Although a CMD may assist in some way to address these disclosure issues, I would still request a Pre Hearing Review of the case afterwards therefore a CMD would only add another time wasting element. In any case a Pre Hearing Review can still make the same Orders as a CMD so nothing would be likely to be missed out in the procedure.

Although the claimant has indeed failed to provide anything in compliance to the Timetable Schedule, I believe the issues surrounding this case to be more in keeping with a Pre Hearing Review. In particular, although the claimant has failed to complete and submit any documentation, the actual claim itself is so devoid of information as to render it worthless.

I point to the need to complete the "relevant required information" as per the rules for acceptance of the claim.
I understand that the non completion of a relevant piece of information may not be critical to the continuance of a claim, where such information is thought to be immaterial, however when such information is thought to be material, as case law suggests, this would be something upon which a Chairman may well be inclined to reject a claim. In the case here, the Claim Form is devoid of most of the relevant required information and most of it is very material to the case.

I intend to put it to the Hearing that the case should initially have been rejected by the Secretary for failure to comply with these requirements and should have been despatched to the Chairman for his decision.
The first issue is to whether the claim should have been accepted without referring it to the Chairman, and if it had been referred whether it would be likely that he would have agreed continuance despite the many material defects of the claim in completion of the materially relevant required information. I am not sure on the legal basis of continuing with a claim that should undoubtedly have been rejected by the Secretary in the first place.

If rejection should have been made, as I think ought to have been the case, then is it right that the case should be allowed to continue without further scrutiny by the Chairman as to its merits, in respect of the missing and erroneous information?

Since the E.T.1 is devoid of large amounts of relevant information most of which is material to the case, then this would require substantial re-writing of the claim form to make the proper issues and information known. I believe this is done by means of an Amendment Order. I also believe that perhaps single non material errors or omissions are catered for in such an order. Whether or not such an order would be feasible, or in the interests of justice to the respondent is something that only the Tribunal can decide upon, but I suspect that due to large amounts of erroneous and missing material information only a new claim form (E.T.1) could properly address this situation. This of course would render the case out of time. To explain the effect of the missing information I make a comparison to reading and understanding the Bible with every other page missing. Such is the lack of information.

Although the naming of ****** as the respondent is wrong this is a lot more than a minor non material point such as a simple spelling mistake. I believe it to be a critical material piece of the Relevant Required Information that cannot properly be amended, especially as the claimant does have the full details of her employer on her Contract of Employment. The claimant has acted totally unreasonably with this claim and her errors are her own fault. She would have had opportunity to seek advice on completion of the form via ACAS but didn't do so.

I also believe that another, possibly the most important critical material defect is the non completion of the section showing her resolve to follow Grievance Procedure. If she had even raised the matter in a Grievance or spoken to her employer before she instigated a claim, she would have quickly found out that she hadn't been dismissed and wasn't under threat of dismissal at that time. As is stands, even when I called round to her house some 3 and half weeks following her alleged dismissal (constructive or employer termination, whichever she claims) to pass on Easter cards, a bouquet of flowers and gifts for her grandson she made no mention even though she readily accepted her gifts.

Due to her unreasonable claim I have also asked for a Deposit Order and permission to lay a Preparation Time Order against the claimant and I believe this may need to be heard at a Pre Hearing review rather than a CMD.

Much is made of the need to give equality of arms between the 2 parties in cases and I believe that the claim, apart from being ill-founded in any case, is so poorly constructed and completed on the claim form that the issues surrounding the acceptance of it in the first place need to be heard and given proper consideration. As can be seen from previous correspondence I have also asked for a Strike Out of the claim which I believe is perhaps better dealt with under the provision of a Pre Hearing Review.
Yours sincerely

[charitynjw]

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

Hi Lynnzer,

Looks ok to me.

May I suggest, as you have mentioned case law, that you refer to the actual case/s and the applicable paragraph/s, and enclose a copy of the case/s to the Tribunal

[Lynnzer]

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

Hi Lynnzer,

Looks ok to me.

May I suggest, as you have mentioned case law, that you refer to the actual case/s and the applicable paragraph/s, and enclose a copy of the case/s to the Tribunal

I will do Charity just as soon as the request for the hearing is granted.
Another 4 hours preparation time added since my last posting. This could get very expensive.......