Unfair dismissal - schedule of costs advice

[Sweet]

Hi all,

My first post here, this looks to be a very informative forum and I will enjoy reading through the posts!!

I am helping a friend with a constructive unfair dismissal claim, the claim itself is really straightforward and I cant see how it can possibly lose, for example non payment of SSP, then rostering less than the contracted hours on his return, then not giving him any overtime when previously it was regular (other staff were given overtime to cover his reduction in contracted hours!), then demoting him and reducing his pay with no explanation. All this whilst failing to respond to the formal grievance he raised about the issues.
The 'last straw' incident was the reduction in pay which happened last week in which he resigned with immediate effect with the appropriate letter of resignation stating the breaches of contract / statutory rights etc.

I am trying to do as much as possible before taking the case to a solicitor and registering the intention to claim with ACAS. (I suspect his employer will ignore that anyway!!)

A couple of questions I have with regard to preparing the schedule of costs (I know its early days but we need to establish for certain if it is worth perusing):

1. Does the basic award for unfair dismissal already include the notice period?
Should the statutory 1 week notice be added to the 'past loss' part of the compensatory award? Or is it included already within the Basic Award?

2. When working out the "weeks pay" I have seen differing views. It looks like regular overtime can be included but it is worked out over the previous 12 weeks.
In this case my friends average pay over the last 12 weeks was reduced by the breach of contract and also by way of him being off sick for 4 weeks. Would a tribunal look at using the previous 52 weeks average in a case like this? This would drastically increase the sum he would be due in compensation.

Thanks in advance in anticipation of your responses!

I'm sure I will have more questions in the coming weeks!!

[Sweet]

Re: Unfair dismissal - schedule of costs advice

I'll be working on this again over the weekend so any comments on the 2 questions above will be appreciated.

I now have a 3rd question about Work Place Pensions.

My friend was never put on one. His employer never set one up. The staging date was last year (checked online with and now reported to the Pensions Regulator who have confirmed they will investigate)

I am aware he is able to claim the money owed and also the employer will be liable to pay both the employer and employees contributions backdated to the staging date, however I'm not sure if this needs to be done as a separate claim or if it can be included in the ET claim?

Anyone have any ideas on this one?

Thanks again in advance.

[ULA]

Re: Unfair dismissal - schedule of costs advice

Hi. Firstly can I just check that your friend has been continuously employed with the employer for a period of 23 months and 3 weeks in order to bring a claim, unless your case falls within one of the few exceptions where no minimum service is required (i.e. where it relates to discrimination)?

Did your friend state in the resignation letter that a claim for constructive dismissal would be made? It is just that sometimes it can work against the person in subsequent tribunal proceedings, or when trying to reach a settlement if they are having to explain a blank resignation letter.

Just some of the other things to consider in order to succeed in a claim for constructive dismissal, your friend needs to consider the following criteria and act accordingly:

• Has the employer performed a clear fundamental breach of contract?
• Has your friend raised a grievance (it appears from your post this happened) and resigned in consequence of that breach and not another reason?
• Was there too long a delay before resigning? It would appear not from your post.

In answer to your questions the Basic Award is calculated by taking the employee's age, years of service and average weekly pay to arrive at a figure.However, the weekly pay figure is limited to a maximum of £489 per week, (this applies from 6th April 2017) and the maximum years that will be considered is 20. However, the years of service also depend upon the age of the employee. This is how it is calculated in detail:


1. For each year of service below the age of 22, you will receive half a week's pay for each year.
2. For each year of service not below the age of 22, the weekly pay is multiplied by 1
3. For each year of service not below the age of 41, the weekly pay is multiplied by 1.5

When calculating a weeks pay you take the gross salary divided by 52 weeks if contracted to a standard working number of hours per week. A week's pay is calculated based on the employee's "normal working hours" in a week or the average working hours in a 12-week period prior to the termination/resignation if his or her hours vary. Overtime is included in "normal working hours" only if the employee is entitled to overtime under the contract of employment, i.e. if the employer must provide overtime and the employee must work it. In that situation, the overtime pay will count towards a week's pay for the purposes of the calculation.

Not sure on the pension question at the moment would need to do some more research myself but in any case I would add it in as a separate line item with details explaining the circumstances.

[Sweet]

Re: Unfair dismissal - schedule of costs advice

Hi Ula,

Thank you for the detailed reply.

To answer your questions:
Yes he was employed for 5 years.
The resignation letter included the wording "I consider myself to have been constructively dismissed" but it did not specifically state a claim would be made. I think the wording is good enough though?
Clear and fundamental breaches in contract were made.
A grievance was made but there had been no acknowledgement 3 weeks after the letter was handed in.
The resignation was a combination of several factors that all happened over a 6 week period. The grievance stated "I object to you changing my employment contract" and when his pay was reduced he resigned immediately, therefore I think it is clear to say he resigned due to the breach.

I really do not see how this employer can defend any of his actions!!! Other than telling blatant lies at the ET.

He was not contracted to do overtime nor was in in any contract (he was never issued with one), however it was regular right up until about 2 months ago. I'm still a little confused with you explanation on calculating his pay. He was contracted, he believes verbally to do 20 hours per week, no set days or times, however he regularly worked 30 - 40 hours. (5 years of payslips to back this up!)
When he returned from his period of sickness he was only given 14 - 20 hours per week.
If I use the previous 12 weeks this will be massively lower than calculating it over a 12 month period.

I guess my original question still stands... which method will the tribunal expect me to use when calculating for the schedule?

Thanks again.

[ULA]

Re: Unfair dismissal - schedule of costs advice

From what you have posted, he was not entitled to overtime in terms of the employer having to provide overtime and it having to be worked, therefore it should not count towards a week's pay for the purposes of the calculation. Suggest that you take the total of the last year's payslips excluding overtime and divide by 52 to work out a weeks pay.

[Sweet]

Re: Unfair dismissal - schedule of costs advice

Thanks, the problem is overtime is not separately identified on his pay slips, its just hours worked each week.

If its basic pay then its as simple as 20 hours per week, no need to divide by 52.

[ULA]

Re: Unfair dismissal - schedule of costs advice

That's a shame it is not separated out on the pay slip in. In which case it is 20 hours per week x the hourly rate.

[Amanda5]

Re: Unfair dismissal - schedule of costs advice

Welcome to the forum. Good question!