Fairly urgent - tribunal advice needed

[kingofrod]

Hi Meno. That's correct. My 'main' employer is in Dorset and my secondary is in Manchester. My uncle needed round the clock ACCESS to care so I really needed to be in Manch while he was confined to bed. So while I could work at my Manch job - because I could be called away and be home in ten minutes - I couldn't do the same from Dorset which is why I wasn't able to go to that job while he was unwell.

[MENOPAUSALADY]

OK got that. for the sake of simplifiying things can we call the company you still work for A...........and the company you are currently in dispute with B.

 

So you moved from offices of Comany B from Manchester to Dorset and that was approx 18 months ago. So quite some time before you decided you needed to care for your relative. Is that right?

[kingofrod]

That's correct. My uncle has had health problems for a number of years an has no children of his own. We are VERY close though. So the move to the Dorset office was a difficult decision but one I felt was right at the time. Infact, it's still the right decision. In the year or so prior to my uncle being confined to bed, he had a number of other accidents but they weren't serious enough for me to need the time off work. I would only take time off if I absolutely - ABSOLUTELY - needed it which is why I'd gone ten years without taking time off over and above the leave I had taken. I'd have thought any reasonable employer would recognise that things must have been desperate for me to need to take this time off last year.

[MENOPAUSALADY]

Yip..........with you there.........and were Company B aware of your need to care for your Uncle? Because if they were I find it strange that they did not suggest simply transferring you back to Manchester office, especially since you are an exemplary employee of many years standing.

 

And then of course there's this matter of the member of the Dorset staff who harrased you...............and your employer did nothing about that.

 

Are you with me?

[kingofrod]

I'm very much with you.

 

To be honest, I don't have a problem with them not having moved me back to Manch. I was happier in the Dorset office and this, I believed, was a one-off incident where additional care was required. I don't think I needed to move back at this point, but it may have been something I'd have to consider in the future.

 

I remember mentioning my uncle's other illnesses to a former manager but never in an official capacity as such.

 

As for the colleague from Dorset, well, I've been thinking the same. As mentioned earlier, I had a lot of problems with a number of the Dorset staff because of the nature of my move down there. I'd made a number of complaints to the company about the situation and nothing was ever done. They'll argue that it was my responsibility to put in an official complaint, which I never did, but I still feel they failed in their duty of care to me.

[MENOPAUSALADY]

Well of course they have failed in their duty of care...........the problem from your point of view is proving that to a tribunal.

 

I'm not sure it is really in your best interests to say that you were happier in the Dorset office........

 

......From what you've said in your post about them it seems that their business is not exaclty thriving.................... not having enough work for you resulting in an offer of 2 months unpaid leave, which you very reasonable agreed to, only to have them renage on their offer.

 

Do you no why the employee you replaced in Dorset left?.......might they be prepared to appear as a witness?

 

....sound to me like Company B think they've found a good way to make staff (namely you) redundant without having to go through the proper process.

 

Tribunals, in reaching their judgments are very concerned with reasonableness and credibility.............and I can't see how your employers actions could be described as either reasonable or credible.......please excuse my spelling...............

[MENOPAUSALADY]

You see if you could show that you would have been happy to return to the Manchester office and that that would have meant that you would not have need the time off...........and that were you to be re-instated as an employee you would be happy to work in the manchester office you would have, in my opinion a much stronger case. It may be an idea to seek disclosure of your employment record from the Manchester Office, showing that problems did not start until you moved..........but you may well think I'm barking up the wrong tree of course.

 

I hope my thoughts have helped

 

kind regards

menolady

[kingofrod]

Thanks for the message

 

I knew before I took the job in Manch 10 years ago that my Uncle's health was declining but I'd taken steps to make sure this didn't get in the way of my work (I was based on the road so while I would be away from home I was never really away like I was when working out of Dorset. It's complicated!)

 

The company is doing really well - no danger of that. So I don't think this is a case of them trying to make people redundant without paying redundancy. I wish! That'd have been easier!

 

And as for the offer of unpaid leave, well, the offer was to express my interest in it - it was never a guarantee that I'd get the time off. Regardless, the leave never came about so that's irrelevant really. I recognise the bad timing though of my uncle's fall making it seem like I'm using the need to care for my uncle to secure the month off I thought I'd get but that was never granted. But I've provided proof from my uncle's GP that he needed me at home to care for him, so that should be OK.

 

Being moved back to the Manch office wouldn't have helped really as my work there could take me as far away as Newcastle and Leeds on sales visits so I really needed the time off from being any further away than ten to fifteen minutes, like my part time job is.

[MENOPAUSALADY]

Also when and if you do get to tribunal hearings and Company B find out your calling former Dorset employee...........that may put the wind up a them bit.......if you see what I mean.

 

I took my employer to tribunal back in 1996 for sexual discriimination and constructive dismissal...........I didn't use lawyers. I won the discrimination but not the constructive dismaissal...........but then I'd resigned due to all the bullying and harrsment.

 

 

anyhoo as i say i hope my thoughts have helped...............

[kingofrod]

The person I replaced left of her own accord, unfortunately. Until this point I've ALWAYS found my employer to be fair and reasonable. I feel they're being the absolute opposite now, and their solicitors are being particularly di*kheaded!

[MENOPAUSALADY]

well i wish you the best of luck............i'd be interested to hear how you get on.

 

cheers

menolady:madgrin:

[kingofrod]

Alrighty, so today I got a letter from the respondent's solicitor. It's entitled "WITHOUT PREJUDICE SAVE AS TO COSTS".

 

It says that they (the respondent's solicitor) do not believe I have any chance of winning this case. They stop short of saying I'm being silly persuing things, but list a number of reasons why they think I'm flogging a dead horse.

 

Am I right in thinking that this is their job? To try and intimidate me out of persuing? Should I be scared or should I treat this as bully-boy tactics?

 

They say that "as [you] are representing yourself, we suggest you seek legal advice about this letter". But I want to go this alone.

 

Any thoughts folks?

[becky2585]

My thoughts are that unless it's a genuine attempt to settle the matter, it's not truly without prejudice correspondence and you can possibly bring it to the attention of the Tribunal at a later stage if necessary.

 

It is normal to try to dissuade their opposition from pursuing the claim. Quite honestly, they wouldn't be doing their job properly if they didn't. It doesn't mean what they are saying has any merit.

 

To me, the fact that they're not prepared to make those assertions in open correspondence is highly indicative of the fact that they realise what they're saying is all hot air and has no reasoning behind it. If you want to PM me the exact content for privacy reasons, I'm happy to take a look and advise further (sorry to HB if this is against the rules! Just trying to help without giving the OP away).

[kingofrod]

That's interesting, Becky, cos they also mention in the letter that, in relation to the heading/title of the letter "this means that must not refer to it in correspondence to the Tribunal or in any statements or submissions until after the Tribunal has reached a decision regarding [my] claim an the issue of costs is being addressed".

 

I don't like this at all. It sounds like I could write to them and say "you're a bunch of total w*nkers" but head the letter "without prejudice" meaning they can't tell the Trinunal.

 

Seems daft.

 

I had a feeling that what you've said would be true. They have a duty to try and get this thing dismissed, I suppose, so I cannot hold this against them.

 

It seems incredible to me that so many cases where guilt is obvious are thrown out of court, or people are found not guilty on technicalities, when someone can be sacked for needing time off to care for a relative and the company would deem it appropriate.

 

I'm chasing a common sense verdict, I suppose. A verdict of compassion and understanding.

 

Did I make a mistake? Of course I did. I've admitted it previously; but I feel I've provided justification for that mistake. It's now a case of the company's pride coming into play and them not wanting to settle.

[honeybee13]

My thoughts are that unless it's a genuine attempt to settle the matter, it's not truly without prejudice correspondence and you can possibly bring it to the attention of the Tribunal at a later stage if necessary.

 

It is normal to try to dissuade their opposition from pursuing the claim. Quite honestly, they wouldn't be doing their job properly if they didn't. It doesn't mean what they are saying has any merit.

 

To me, the fact that they're not prepared to make those assertions in open correspondence is highly indicative of the fact that they realise what they're saying is all hot air and has no reasoning behind it. If you want to PM me the exact content for privacy reasons, I'm happy to take a look and advise further (sorry to HB if this is against the rules! Just trying to help without giving the OP away).

 

You called . It is accepted that for reasons of confidentiality, some advice may need to be given by PM. All we ask is that as much discussion as possible takes place on the open forum. I'm sure you know the forum rules by heart, but here's what they say for ease of reference.

 

d) Offering to advise members or asking members for advice by PM or email without good reason - If it is felt that a subject is "sensitive" and would be better discussed off-forum, we ask that members contact a member of the site team BEFORE asking for contact details. This rule is in place to protect our members from claims touts, and also to ensure that any advice given is open to debate, qualification, and where necessary, correction.

 

My best, HB

[becky2585]

Regarding the without prejudice rule, you can't just say what you like. Any without prejudice letter or discussion must be made with the purpose of trying to settle a genuine dispute, or it doesn't attract the rule, despite what a party may state. If it did, an employer could sack whoever they felt like by claiming the meeting was "without prejudice" and therefore not discloseable in court...

 

Thanks HB

[kingofrod]

Thanks for this Becky. I wouldn't dream of sending them a letter like I suggest, of course... Atleast not until after the hearing JOKE!

 

In the letter they just sent me they gave me a deadline by which if I drop the case, they won't persue costs. It does sound to me like they're trying to intimidate me a little into dropping it - giving me a deadline, telling me I can't tell the Tribunal about the 'offier' (perhaps so the Tribunal don't come to the same conclusion as me).

[MENOPAUSALADY]

Alrighty, so today I got a letter from the respondent's solicitor. It's entitled "WITHOUT PREJUDICE SAVE AS TO COSTS".

It says that they (the respondent's solicitor) do not believe I have any chance of winning this case. They stop short of saying I'm being silly persuing things, but list a number of reasons why they think I'm flogging a dead horse.

 

Hi kingofrod

 

Of course the repondent's would prefer that you don't persue the case, after all who in their right mind gets involved in litigation unless they absolutely have to, your already costing Company B money, as they are paying for this solicitor.

 

I suggest you pay particular attention to what they write about the reasons they reckon you have little chance of being sucessfull. As this is likely to form the basis of they're response. If you look at this in a positive way, what they are doing is giving you a bit of a sneek preview of how they intend to defend themselves. Using that information may aid you in prepairing your bundle etc..............

 

regards

MENOLADY

[MENOPAUSALADY]

Having said that, I can't see what would prevent you from contacting the Tribunal Service to ask for information regarding respondent's or their solictors pursuing applicants for costs. Remember you are an aggrieved emlpoyee, not a solictor and therefore not expected to know the finer points of the law. You might even get that kind of info from the Industrial Tribunal Service website.

 

The company I took to tribunal engaged both a solicitor and a QC, must have cost them a fortune, and although I partially won my case the respondents did successfully manage a fair degree of damage limitation.

 

regards

menolady

[honeybee13]

Hello again.

 

I hope someone else will comment, but as I understand it, only rarely would costs be awarded against the claimant.

 

My best, HB

[MENOPAUSALADY]

Hi HB

 

yep............that's what i believe........if i cast my mind back, costs may only be awarded if an applicant's case is "vexaicous"..................although i don't think i ever understood what that meant really.

 

regards

menolady

[MENOPAUSALADY]

Hi Kingofrod

 

You might want to try reading the info on the directgov website link below :

http://www.direct.gov.uk/en/Employment/ResolvingWorkplaceDisputes/Employmenttribunals/DG_10028122

[MENOPAUSALADY]

Hi kingofrod

 

thought you might find the CAB website helpfu, regarding preparing an employment tribunal case.............

 

good luck:-)

 

 

[becky2585]

You aren't in any danger of a costs application being made against you if they aren't even prepared to submit it in open correspondence. Chances are that they know they're using bullying tactics but don't want the Tribunal to know about it!

[MENOPAUSALADY]

Hi kfrod

 

You may find the following info interesting its from directgov webite, regarding your right to time off for dependants link below:

 

http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10026555

 

bye for now

menolady