Unfair dismissal/ claim for payment in lieu of notice

[Lynnzer]

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

Am awaiting decision on Strike Out request but in the meantime the first date for action by the claimant has lapsed without any word from them. The date was "By no later than the 4th August"
and the action was
"The claimant shall set out in writing what remedy the Tribunal is being asked to award . The claimant shall send a copy to the respondent. The claimant shall include any evidence and documentation supporting what is claimed and how it is calculated. The claimant shall also include information about what steps the claimant has taken to reduce any loss (including any earnings or benefits received from new employment)."
I haven't received anything.
How does this affect ongoing proceedings?

[Lynnzer]

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

Just been browsing....doing some preparation just in case, and I've found the rules applying to Retirement Dismissals.
These are set out as follows:
Retirement dismissals
11. As mentioned above, the standard (three-step) dismissal and
disciplinary procedure applies to all dismissals, including compulsory
retirement. Where an employer seeks to dismiss an employee compulsorily
on grounds of age in circumstances where the employee could claim unfair
dismissal – i.e. before the normal retirement age for the job, or before age 65
where there is no such normal retirement age – then the standard dismissal
procedure must be followed.
12. Where retirement is by mutual consent, there is no need to follow the
procedures. Furthermore, there will be no need for the employer to go
through the procedure where the employee could not in any event make an
unfair dismissal complaint about his/her retirement i.e. under the current
unfair dismissal legislation, where the dismissal is at the normal retirement
age for the job or, in the absence of such an age, age 65. This is because no
legal consequences flow from failing to follow the procedure in a case where
the employee could not make a tribunal complaint about the dismissal in any
event.
-----------------------------------------------------------------------------------------
If you read the letter sent out to the employee you can see that mutually agreed retirement was given as an option. Given that the ongoing procedure was to agree, or otherwise, an agreed retirement does this rule still apply. Has it been amended or is it still an agreed part of Employment Law?

[charitynjw]

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

Hi Lynnzer,

Er......that's the 2002/2004 Acts, which have now been superseded by the 2008 Act.

(New Disciplinary/ Grievance procedures with effect from 6th April 2009)

[Lynnzer]

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

Hi Lynnzer,

Er......that's the 2002/2004 Acts, which have now been superseded by the 2008 Act.

(New Disciplinary/ Grievance procedures with effect from 6th April 2009)

Bugger me, so many Acts....
Now, the claimant was supposed to have submitted details of the remedy she wishes the court to make, plus calculations of the amount(s) claimed, by 4th August and copy to me. Nothing received some 10 days later.
The next deadline is 18th August (next Thursday) when both claimant and respondent are supposed to exchange lists of documentary evidence they are going to use. Bearing in mind that the first deadline has come and gone with no word from the claimant this puts me at a huge disadvantage in even drawing up anything to use as evidence of rebuttal or different calculations.
I have added another reason for strike out for non compliance with The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 as it puts me at a great disadvantage and has the result of my not being able to comply with the next deadline criteria. Am I correct in supposing that the 2004 Act is still OK here?
I've also included the details of the rules of this Act for another Strike out reason. The Secretary should have checked the ET1 for correct completion before accepting the claim. In fact there were several very important sections not completed that really should have been. Since this is undoubtedly the case, the claim should have been rejected and passed to the Chairman for his decision, something I'm sure didn't happen.
Since there is obviously some procedural maladministration I have asked the Chairman to check out the ET1 for his decision as to whether or not this claim should have progressed without any initial rejection by the Secretary and given the incomplete sections which are critical in forming my response whether at this late stage the claim should be rejected as if it was never accepted in the first place.
Any thoughts on this, except perhaps to comment that I will probably **** the secretary off and maybe the chairman for bringing it to their attention that they have been lax in their admin.

[charitynjw]

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

'Unless' order

http://etclaims.co.uk/2008/04/unless-orders/

[Lynnzer]

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

And what about failure to reject the claim for incomplete critical details?

[charitynjw]

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

If it were me, I wouldn't p*ss off the Tribunal.**

(Ooops - I shouldn't have made a comment about that - post #34) lol

**Not 'till I had to, anyway!

[Lynnzer]

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

It seems that someone has taken notice of the anomalies and discrepancies in the claim. All the stuff I sent to the ET has been scrutinised and I now have to attend a Case Management Discussion on 9th September.
I wonder if the claimant will bother to attend.. She hasn't done anything to comply with any of the other procedural things.
Will update in due course but here's the gist of my representations that will be produced to them:

__________________________________________________ _______________

Form E.T.1
under the Employment Tribunal Rules of Procedure:
Starting a claim
1.—(1) A claim shall be brought before an employment tribunal by the claimant presenting to an
Employment Tribunal Office the details of the claim in writing. Those details must include all the relevant required information.


There are several omissions on the Claim Form, as well as incorrect or incomplete details in other sections.
Given that the Secretary wouldn't know if any information is correct or not, he cannot be expected to reject a claim on that basis, however the omissions and mistakes given here should have triggered the rejection of the claim:


Section 3.1 and 3.2 have both been ticked which is a wrongful and obviously incorrect completion of the ET1, Ticking 3.1 should have guided the claimant to Section 3.3 but instead the claimant has also ticked S3.2 confusing the issue and making an obvious and inaccurate claim that should have been noticed and given cause for rejection of the claim.


Section 3.3 has no box ticked as required. This would lead to a suggestion of no complaint of dismissal, either constructively or unfairly. This uncompleted section fails the test of requiring all the relevant required information and therefore should have also been a cause for rejection.


Section 3.4 hasn't been completed so no other matter is put before the Tribunal as part of the claim. It's a requirement that either the Yes or No is ticked and neither has been done so. This is another example of the ET1 not having been completed with all the relevant required information and should have been yet another rejection reason.


Section 3.5 hasn't been completed but was required to be done so. Another cause for rejection of the claim.


Section 3.6 hasn't been completed but was required to be done so. Another cause for rejection of the claim.


Section 3.7 hasn't been completed as is required.This is a statutory requirement that carries the warning (In most cases, it is a legal requirement to take these procedural steps. Your claim will not be accepted unless you give a valid reason why you did not have to meet the requirement in your case. If you are not sure, you may want to get legal advice.) This obvious failure also amounts to another reason for rejection.


There follows incorrect details in Section 4, in respect of the Employers details however the Secretary would have no reason to reject the claim for that since only the claimant would be expected to know these details.


Section 5.1 is not clear on whether this claim is for dismissal by the employer or constructive dismissal and there's no explanation given as to what is being claimed and why, beyond an alleged basic grievance. It would be wrong to expect the employer to have to guess the intent, the cause and the reason behind this sketchy explanation. In any event, since S3.3 hasn't been ticked there isn't a confirmed complaint of dismissal anyway.


Section 5.7 hasn't been completed as required.


Section 8.3 is incomplete, as well as potentially wrong in any event. The incompleteness should make this section invalid with a rejection of the claim in accordance with the Rules of Procedure as shown below,
What the tribunal does after receiving the claim
2.—(1) On receiving the claim the Secretary shall consider whether the claim or part of it should be accepted in accordance with rule 3. If a claim or part of one is not accepted the tribunal shall not proceed to deal with any part which has not been accepted (unless it is accepted at a later date).
Since no explanation or calculation has been give as to the amounts shown, and as S3.4 hasn't been completed, this part of the claim should not have been accepted. In respect of amounts claimed, as she was a part time worker her wages would have been based on an average over a set period of time. There's nothing given to show that the amount claimed has followed this calculation.


Conclusion on acceptance of the claim objection.
The claim form is clearly not completed where it should be. Where it is not completed the Secretary should treat it in accordance with Rule 3 which says:
3.—(1) When a claim is required by rule 1(3) to be presented using a prescribed form, but the prescribed form has not been used, the Secretary shall not accept the claim and shall return it to the claimant with an explanation of why the claim has been rejected and provide a prescribed claim form.
(2) The Secretary shall not accept the claim (or a relevant part of one) if it is clear to him that one or more of the following circumstances applies —
(a) the claim does not include all the relevant required information;


The Secretary should, on recognition of an incomplete or inaccurately completed claim form, reject the claim or that part of it and pass it with a statement of reasons to the Chairman for his consideration.
I believe this didn't happen despite the glaringly obvious omissions of the claim, and the incorrect details of other parts of it that would be within the remit of the Secretary to recognise.
In particular Sections 3.5, 3.6 and 3.7 are of prime importance and even if nothing else had caught the attention of the Secretary, the omission of the completion of these sections would not have done.
With respect, an incomplete claim form stating All the Relevant Required information, makes it difficult to give any response and denies the respondent the right to a fair trial under Article 6 of the European Convention of Human Rights. This ET1 is so badly completed it makes not much more sense than trying to read a book with every 2nd page missing.


The Actual Claim
Incorrect employer details given. XXXXX Fashions was not her employer.
A previous wrongly issued claim in a Crown Court in 2007 the details of which were never received by us, went to court and an absent default judgement was made in the name of XXXXXFashions and JXXYYY, the proprietor. On the shock receipt of the court's decision an appeal was made that the claim had been made against the wrong company. The Judge agreed and ordered that the decision should be struck out.


In this case, the claimant has the correct details on her contract of employment and should have used them accordingly. Since XXXXXX Fashions was a previous company which she never worked for at any time, she cannot pass on a complaint against this company.


Although XXXXXX Fashions may be an oversight in the completion of the claim, the company still carries liabilities in respect of it's previous business and to that extent it still has a legal status of its own that cannot be confused or extended to another company such as XXXXXX Fashions Ltd. Consider the claims of people affected by asbestosis against former employers who have ceased trading but whose Liability Insurance remains valid.


Denial of termination of employment
Mrs Hxxxxx wasn't dismissed by her employer as she states. She was never told so, and although reference was made to a P60 this was nothing more than normal annual procedure. She was never told anything about a P45 and she may have misunderstood the difference between P60 and P45 leading her to wrongly believe that dismissal was the intention. This was not so.
Even if she believed she was to be dismissed she should have invoked the Grievance Procedure where the true situation would have been very quickly explained to her and resulting in no consequential dismissal. Remember that at this stage, there was no dismissal by the employer, before, at the time of her talk or immediately afterwards. She cannot possibly put evidence to the court of anything to support her claim that she was dismissed on 30th March as claimed.
The conversation between her and Jxx Rxxxx was in the presence of others in the shop, something that Mrs Hxxx complains of, but as this wasn't a formal interview there was no reason for it to be in private.
As it is, the conversation was overheard by members of staff at work that day. As is the case with such open conversations every word was taken in by those within earshot and it has been confirmed that no-one heard any mention of dismissal at any time, even though the mention of a P60 was heard. It's also a fact that Mrs Hxxx was overheard stating that she couldn't manage the stairs which is a part of her duties, and that she needed to use the handrail and a stick to go up and down them. For that reason it was suggested that she didn't return to work at that time. We will be able to bring witness to the gist of the conversation to our defence. If we had wanted to be rid of Mrs Hxxxx we would have terminated her employment during the 6 months she off work but we kept her position open as we valued her experience.


My belief is that Mrs Hxxxx mistakenly took the wrong message away with her by confusing P60 with P45. If not, then as no dismissal was made by the employer it can only be supposed that constructive dismissal is the basis of her claim although the incomplete claim form cannot verify it.
Since no Grievance Procedure was uninitiated by Mrs Hxxxxx we had no chance to avoid the situation we now find ourselves in.
What is most incredible is that even though she states her dismissal was on the 30th March, I actually took Easter Cards for herself, a bouquet of flowers and Easter gifts for herself and her grandson around 3½ weeks later and no mention of her complaint was made to me, although I did get an unusually dismissive response when she opened the door, instead of the hug that she normally gives.

[CleverClogs]

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

From whom will you claim your costs - from the tribunal or from the claimant herself?

[Lynnzer]

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

From whom will you claim your costs - from the tribunal or from the claimant herself?

No point in claiming really. Can't claim the first fiver and as I live less than a fivers worth of mileage from the court I won't be able to do anything about it. I'm also working for the wife's company so can't say it'll result in a loss of income as I don't get any anyway.

[CleverClogs]

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

Hasn't slavery been abolished in the UK?

[teaboy2]

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

You can still claim costs for the time you have spent researching and putting together your defence , say £10 each hour spent on the case.

[charitynjw]

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

I thought that, in an ET case, each party is responsible for it's own costs.......apart from a 'successful' Part 36, or if the Tribunal decides that costs should be awarded for some reason such as abuse of rules.

[teaboy2]

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

Thats the general rule, yes.

But given the circumstances and the poorly and incorrectly filled out tribunal claim forms, the claiment could be found to have abused the tribunal process and made a claim when there was no course of action to substantiate such a claim. She gave the wrong name, my question would be why? was it on purpose in the hope the company did not receive the claim and therefore not respond to it?

If i was the employee i would know exactly what the name of the company i worked for was called. And given her age she is old enough and experienced enough to have known the difference between a P60 and a P45.

Also her poor filling out of the form in other aspects leads me to think that she maybe did so half heartly in respect to knowing she gave the wrong name - Theres nothing stopping her from contacting the tribunal helpline for advice on filling in the forms.

I would certainly go for cost on this as her claim has been a complete waste of time. I admit i was sceptical at first but as more Info has filtered through, the more it looks bad for the claiment.

End of day the claim should never have got this far, going by the info the OP has posted.

And to add insult to injury, she accepts presents from the OP without even mentioning the issue to her. That just takes the mickey in my opinion.

I was sceptical at first as to the OP's chances but as more info has been forthcoming the more its looking 100% in the OP's favour.

[charitynjw]

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

You can still claim costs for the time you have spent researching and putting together your defence , say £10 each hour spent on the case.

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