Developments the day before an ET!!!!! *************Won********* ******

[Marieleeza]

Thats what I was getting at yes. I looked into that and told them it was self defence to start with but they didnt listen.The statement from the police officer that arrested me (which Ive applied to have removed from the evidence bundle) states quite clearly that the group were behaving in a threatening manner and making threats, and the self defense stuff that Ive researched says quite clearly I can act in my own self defence even in the threat of an attack.

 

Why do you want the copper's statement removed from bundle? It seems to back you up.

[RachelMD]

Ok a union guy Ive just spoken to has mentioned busting the 12 month rule be asserting the dismissal was on the grounds of health and safety, ie protecting myself or others from imminent injury or danger. As the company, police and all witnesses have asserted that there was an imminent attack and possibility of injury from the youths involved then that may just swing it. What do you reckon?

I think someone told you that a long time ago. Can't think who it was.

[RachelMD]

That is saying that you were protecting yourself or an individual from harm and it comes under Whistleblowing.I found this reference with some case summaries.http://www.pcaw.co.uk/law/casesummaries.htm

How on earth is it whistleblowing?!?

[Marieleeza]

How on earth is it whistleblowing?!?

Reporting a concern about your danger to your own health and safety or that of another extends to acting to protect your own health and safety and that of another. I believe that some of the cases cited refer to actions as well as information.

 

Here is a quote relating to a staff member sacked for defending himself on a train

 

"There's the concept of self-defence in case law that extends to defending not just one's self and one's property but also one's nearest and dearest and family," says solicitor Robert Brown. "If I was married and my wife was being attacked then it would be a form of self-defence by analogy to protect property or family. So to that extent there would be some permission."

 

This self-defence protection extends to anyone else, including a stranger. The Criminal Law Act aims at preventing a crime and permits assault if, for example, a shoplifter is being stopped from leaving a store. "Therefore by analogy if you see someone beating up a stranger and intervene and you are accused of assault then you could use the Criminal Law Act to say 'I've a defence because I've prevented a crime,'" says Mr Brown. "Therefore there's a rather broad defence in law to protect someone who intervenes."

Edited August 12, 2011 by Marieleeza

[RachelMD]

Acting to protect your (or anothers) health & safety might indeed give the OP grounds for making an application to ET, but it's entirely disconnected from the concept of whistleblowing.

This isn't whistleblowing at all.

[RachelMD]

This explains what 'Whistleblowing' is

http://www.direct.gov.uk/en/Employment/ResolvingWorkplaceDisputes/Whistleblowingintheworkplace/DG_10026552

[honeybee13]

Acting to protect your (or anothers) health & safety might indeed give the OP grounds for making an application to ET, but it's entirely disconnected from the concept of whistleblowing.

This isn't whistleblowing at all.

 

I agree with you Rachel. It's not what I understood about whistleblowing. I have a vague recollection about it being in the public interest, but it's been a long day and I could have remembered it wrongly without checking it out.

 

My best, HB

[Marieleeza]

This explains what 'Whistleblowing' is

http://www.direct.gov.uk/en/Employment/ResolvingWorkplaceDisputes/Whistleblowingintheworkplace/DG_10026552

 

Whistleblowing and Health and Safety are not the same thing but come under the same category in respect of automatically unfair dismissal.

Health and safety grounds

 

 

It is automatically unfair to be dismissed for taking action on health and safety grounds, such as:

 

•Carrying out or trying to carry out any activities in your role as a health and safety representative

•Whistleblowing on health and safety breaches

 

While the OP was not a Health and Safety representative, he acted to protect himself and others. I think this is what his union rep has in mind for getting around the 12 month rule.

[RachelMD]

Whistleblowing and Health and Safety are not the same thing but come under the same category in respect of automatically unfair dismissal.

Health and safety grounds

 

 

It is automatically unfair to be dismissed for taking action on health and safety grounds, such as:

 

•Carrying out or trying to carry out any activities in your role as a health and safety representative

•Whistleblowing on health and safety breaches

 

While the OP was not a Health and Safety representative, he acted to protect himself and others. I think this is what his union rep has in mind for getting around the 12 month rule.

Yes, I agree. This is what I've said all along.

But this is not what you said in #149, and that is very misleading.

Be careful about what you assert, as it might cause people in very vulnerable circumstances to make disasterous decisions when, say, filling out an ET1.

 

All it takes is a little Google before you post, just to make sure you know what you're talking about.

Believe me, I do it:oops:

[ms_smith]

I agree with you Rachel. It's not what I understood about whistleblowing. I have a vague recollection about it being in the public interest

 

 

Honey, blowing the whistle in the public interest means doing it in the interest of everyone, no matter which sector's (private or public) services, practises or products are being complained of.

Edited August 13, 2011 by ms_smith

[hhh_88873]

Right, the judge has said she isnt interested in the cctv of the incident, hence my requirung the removal of cctv stills of the incident in question.The police officers statement should not be included (in my opinion) becaus ehis job was to make an arrest, and put the evidence before the cps. His personal opinions etc are not relevant and have no bearing on the case. He wasnt a witness to the incident, there fore he should not be providing a statement.

[hhh_88873]

And as for the whistle blowing yadda yadda, Im gonna be going with that as one of the lines to exempt my case from the 12 month rule as I have a statutory right to protect myself from harm. This means I can use reasonable force to defend myself and under the criminal law act 1967, this can also include the threat of attack, which is mentioned in statements from my former colleague. If I cant get the coppers statement withdrawn then his line mentioning the threatening youths will further back up what Im saying.

[RachelMD]

But it isn't whistleblowing, H. Let's be clear about that.

What was the Rozzer's statement exactly? Have you previously said in a post you can refer me to?

I'd be surprised if it wasn't relevant.

[hhh_88873]

I dont have it on me at the mo, but basically explains he viewed cctv, nicked me and interviewed me. Also says I went for the youths throat in the incident, despite him conceding during the taped intervied that I actually hadnt, and admitting this at a later date as well.Says he identified the youth but was unable to get him to make a complaint against me.Says that the behaviour of the youths in question admittedly was threatening.I really dont think its relevant one bit. He wasnt there. He cant comment on it when he didnt directly see the incident.

[Marieleeza]

I dont have it on me at the mo, but basically explains he viewed cctv, nicked me and interviewed me. Also says I went for the youths throat in the incident, despite him conceding during the taped intervied that I actually hadnt, and admitting this at a later date as well.Says he identified the youth but was unable to get him to make a complaint against me.Says that the behaviour of the youths in question admittedly was threatening.I really dont think its relevant one bit. He wasnt there. He cant comment on it when he didnt directly see the incident.

 

Is this any help? I think you need to try to find some case law examples. This case is Oudahar v Esporta Group Ltd EAT/0566/10

 

 

The EAT held that the tribunal had used the incorrect test. The correct test is to ask:

 

whether or not the employee communicated to the employer his or her belief that there were circumstances of danger that he or she reasonably believed to be serious and imminent, or took steps to avert the danger ; and

 

if so, whether or not the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps.

In the EAT's judgment, the mere fact that an employer disagreed with an employee as to whether or not there were circumstances of danger, or whether or not the steps that the employee took to avert the danger were appropriate, is irrelevant.

The intention of Parliament in drafting the legislation was to serve the interests of health and safety and protect an employee as long as he or she is acting honestly and reasonably in the specific circumstances. If an employee could be fairly dismissed merely because the employer disagreed with his or her account of the facts or his or her opinion as to the action required, the statutory provisions would give the employee little protection.

[hhh_88873]

That is pretty much the same sort of line Im gonna be going down, but as to whether using this will prove that they breached a statutory right, ie my right to defend myself and thus circumvent the 12 month rule is another matter entirely.

[Marieleeza]

That is pretty much the same sort of line Im gonna be going down, but as to whether using this will prove that they breached a statutory right, ie my right to defend myself and thus circumvent the 12 month rule is another matter entirely.

I think it should be spelled out somewhere if this aspect of Health and Safety is exempt from the 12 month rule or not. Why not try SarEL on the redundancy forum? She is a barrister and might know?

 

http://www.redundancyforum.co.uk/employment-help-advice-employees-new/

[hhh_88873]

Its exempt if it can be proved an employee acted in order to protect his own health and safety in the face of serious and imminent danger. It is exempt from the 12 month rule as its a statutory right. The only questions would be as to what may or may not constitute serious and imminent danger. The threats I was facing would certainly convey such a threat if they were to be accepted on face value.The criminal law act then applies in that I can use reasonable force or even 'a pre-emptive strike' (even tho I didnt) in the face of a threatened attack.The bad thing is, the stills of the cctv theyve selected show me removing the youth PAST the base of the cctv pole (lampost size) and they have chosen a shot where I am taking the youth past the base of this post and they are trying to say Ive shoved him into the pose even tho I didnt and it definitely isnt mentioned anywhere in any statement because I didnt do it. they are so clearly trying to pull a fast one with selective photos.

[Marieleeza]

Its exempt if it can be proved an employee acted in order to protect his own health and safety in the face of serious and imminent danger. It is exempt from the 12 month rule as its a statutory right. The only questions would be as to what may or may not constitute serious and imminent danger. The threats I was facing would certainly convey such a threat if they were to be accepted on face value.The criminal law act then applies in that I can use reasonable force or even 'a pre-emptive strike' (even tho I didnt) in the face of a threatened attack.The bad thing is, the stills of the cctv theyve selected show me removing the youth PAST the base of the cctv pole (lampost size) and they have chosen a shot where I am taking the youth past the base of this post and they are trying to say Ive shoved him into the pose even tho I didnt and it definitely isnt mentioned anywhere in any statement because I didnt do it. they are so clearly trying to pull a fast one with selective photos.

 

This bit of my former post may apply. You took the steps you saw as necessary in the situation and the EAT ruling below says that the employer cannot dismiss you because they do not agree with your perception of the danger or the steps you took to remedy it.

 

 

the mere fact that an employer disagreed with an employee as to whether or not there were circumstances of danger, or whether or not the steps that the employee took to avert the danger were appropriate, is irrelevant.

 

It seems that a lot of leeway has to be given as the situation arose suddenly and you perceived the yobs as a threat so you should be protected by the legislation, it seems to me.

 

You have good evidence to support your version and can claim that it did not get a fair hearing but the employer may have erred by applying the disciplinary policy without giving due weight to the fact that you judged the situation to be dangerous.

 

I think that you do have an argument here but it needs to be set out clearly and backed up with reference to legislation and case law.

 

What I am trying to get at is that usually with unfair dismissal an employer need only have a reasonable belief of wrongdoing and the dismissal will still be fair, even if no wrong was done.

 

In your case, even if you did breach policy, you had a reasonable belief that you were in danger and that should outweigh the employers reasonable belief that you acted inappropriately.

 

Really, in this line of work, if a worker was unable to defend himself or others he would not be able to carry out an important aspect of the role, which, I assume, is why the legislation offers some protection in threatening situations and the 12 month rule does not apply as such a situation could occur at any time.

Edited August 13, 2011 by Marieleeza

[RachelMD]

Is this any help? I think you need to try to find some case law examples. This case is Oudahar v Esporta Group Ltd EAT/0566/10

 

 

The EAT held that the tribunal had used the incorrect test. The correct test is to ask:

 

whether or not the employee communicated to the employer his or her belief that there were circumstances of danger that he or she reasonably believed to be serious and imminent, or took steps to avert the danger ; and

 

if so, whether or not the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps.

In the EAT's judgment, the mere fact that an employer disagreed with an employee as to whether or not there were circumstances of danger, or whether or not the steps that the employee took to avert the danger were appropriate, is irrelevant.

The intention of Parliament in drafting the legislation was to serve the interests of health and safety and protect an employee as long as he or she is acting honestly and reasonably in the specific circumstances. If an employee could be fairly dismissed merely because the employer disagreed with his or her account of the facts or his or her opinion as to the action required, the statutory provisions would give the employee little protection.

Well done. This is relevant.

[ErikaPNP]

Thread edited. All personal exchanges which do not relate to the issue at hand have been removed; please stay on topic.

[hhh_88873]

Ok, theyve said in reply that they arent prepared to remove anything from their bundle, which says to me theyre being unreasonable as the whole point of agreeing evidence bundles is to state what you are and arent happy with.Theyve also said the reason they took so long was to source the human rights legislation that I quoted. Since I quoted the exact terms of section 6.2 of the european HR act is total twaddle that it took them 2 months after the limit to source it when they have a full HR department to deal with it.Looks like Ill be going into it with objections under rule 7 and the above acts to deal with before Im gonna be happy to proceed with the tribunal itself.

[hhh_88873]

Well Well, here we are a week before the tribunal and the first offer to settle has been recieved and duly told to render itself forward and multiply. Seriously paltry offer, I think theyre just yanking my chain........................

[honeybee13]

Hello there. Well, usually if they start making offers it's a good sign, going by what we see here.

 

I'm sure you won't sell yourself short .

 

My best, HB

[hhh_88873]

The offer was low 3 figures and still no acceptance of a reference. As if I was ever gonna accept that.