Unfair, Wrongful or Constructive dismissal?

[lindyhop]

can someone please explain the difference between the following

 

what are the complaints or jurisdiction raised in the claim

 

and

what are the issues or questions for the ET to decide

 

i have assumed that they are one and the same, are they?

 

Thanks for your help

[becky2585]

The complaints/jurisdiction is the claims and which statute they're claimed under.

 

Issues are more facts based - hard to advise out of context!

[lindyhop]

Hi fellow Caggers

 

i have been absent for a while, needing to recover physically and mentally from the trauma of my CMD which was a disaster - i dont exaggerate.

 

my CMD was by no straightforward. the judge was harried and obviously so stressed that he was bordering on rude - claiming that he didnt have the time for flaffing around, was curt and terse. wanted in response terse answer allowing no room for explaination because he said he didnt have the time to hear it. i appreciate that the judge has a tight schedule but he could have helped me by asking the right questions

 

my employers solicitors raised caselaw against my request to amend. however this is an aside. my amendment failed not because of what the Respondents rep was saying but because of what i had failed to say and confusion with dates.

 

my amendment request for DDA was claimed to be late. i need to show the reason why. i stressed the outcome of the SARs - but gave the wrong date for this discover which meant that the judge came back and said (without actually checking with me first) that i had waited a month before raising this complaint, putting the matter further out of time - NOT THE CASE - i wasnt asked why i waited a month i could then have explained that i had got my dates wrong due to nerves in the court room and the question being unexpected, and explained that it was recorded the date of discovery, and could provide a witness. further i failed to include that i am and was on long term sick with depression and self representing all the paperwork taking time.

 

also i not sure how my employers rep managed it, but the original part of my claim for the merits hearing is set for 1 year hence! how is this fair? in the meantime the respondent was granted a PHR and joint CMD. i do wonder if this would all have been the outcome with a different judge.

 

the judge claimed that my amendment to include DD and victimisation meant that my application would be a new claim and could therefore not be included with the original. however near the end of the hearing (he really couldnt wait to get us out of the door) he mentioned that the claimant may be wanting to raise a new application.

 

PLEASE HELP

i feel a bit better and am now to take this forward again and need urgent advice.

 

what new application was the judge talking about?

my continious DD claim was that my employers have not been paying me the right amount of sick pay. prior acts of DD are pre (i think ) my original application for another claim). but bearing in mind my application was submitted whilst i was on sick leave so there was effectively no occassion for any other workplace issues to occur.

 

however having raised the shortfall in pay to my employers i think that they may now remedy this situation.

 

can i submit a new ET application for the other and earlier DD i have suffered after the findings of the judge today explaining my mix up of dates etc, which i can actually prove and the omission of my illness - or is it the case that because the judge has already made a decision this avenue is closed to me? unless new DD occurs should i return to work?

 

addtionally and seperately what would happen to any personal injury claim i wanted to raise if i returned to work on expiry of my 'sick note'

 

can someone with a bit of legal experience help with this one please

 

Thanks

[honeybee13]

Hello again. I'm sorry it didn't go the way you'd hoped.

 

In case it helps the people trying to help you, here's a link to your last main thread.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?341475-Psychiatric-Injury-and-civil-action%28-%29&p=3962049#post3962049

 

My best, HB

[ms_smith]

lindyhop, I am sorry to read about what have happened to you but I would seriously advise asking someone to represent you. Have you tried enquiring with pro bono solicitors?

 

Judges are ready to be sympathetic to those developing depression as a result of work issues but they need to get to the point of confidence of such findings in the first place.

If you take a representative now, you can ask the judge to revise his decisions based upon your earlier lack of actions or their delay.

From what I read from all sorts of judgements, judges tend to look strangely at those who claim DD but still represent themselves in court. It just doesn't straightforwardly click to judges that there may be a genuine case.

Edited September 14, 2012 by ms_smith

[lindyhop]

Thank you so much Ms Smith for taking the time to respond.

 

the problem has always been affordability of a solicitor and pro bono's are near extinct. i am still looking however for a pro bono - in so many cases you have to be referred by an agency and you income needs to be nil or near enough. i am even swallowing my pride and considering borrowing some money from a friend but it is if they have the money in the first place to loan to me. i am on half pay at the moment which doesnt even cover my mortgage and getting more into debt!

 

anyhow i take it that the decison could still be reversed(?)

is it the case that i could possibly get a solicitor to do a single letter to the court to consider reversal - and in this way reduce the cost? or has the solicitor got to take on the whole case?

 

do you know what the judge meant about a new application?

 

thank you so much

[lindyhop]

Just thought

 

can i request that the next hearing is heard by another judge? i hate to think how that hearing will go if the judge is in a stressed and harried conditon again.

 

thanks

[Pusillanimous]

Best not to request another judge as you want him your side (the ET won't change the judge just because you ask them to, they are very authoritarian and THEY call the shots!) See it as a learning curve: next time make sure you get your point across as there may not be a second chance.

 

New application means new ET1 (...?). Check you are within the time limits. It could just mean written application to amend via further and better particulars..

[lindyhop]

Hi there Pusillanimous

 

you are dead right. although the judge was short tempered and stressed, in his own very subtle way he was trying to tell me to put in a new ET1. i got so caught up in his dismissal of my claim to amended that i was completely missing what he was hinting at. not surprising really as one of the comments he said to me was that 'you dont come to the ET looking for directions, if you need directions you find yourself legal advice!' this was in response to the email i sent to the court originally asking whether or not i needed to submit a new ET1 for the DD or if they would consider accepting my request for amendment. this email to them seemed reasonable enough at the time but during my he took exception to it!

 

anyway, coming back to look over the situation today, and re reading my notes from the hearing i have managed to put 2 and 2 together.

 

but its too late for me, i have already written to the court and indicated that i thought the judge was terse and inflexible. i wish i had re read my notes before firing off my disenchantment!

 

how can i get this judge back on side:-)

 

all suggestions welcomed - can i blame my 'mental illness' which my HR manager can testify me having? im being serious.

 

Question

do i need to go through my employers grievance before sending this DD ET1. i have about 6 weeks before i will be out of time for current claim - and i really dont want to put anything in the way to jepodise it!!

 

Regards

 

Regards

[ms_smith]

Thank you so much Ms Smith for taking the time to respond.

 

the problem has always been affordability of a solicitor and pro bono's are near extinct. i am still looking however for a pro bono - in so many cases you have to be referred by an agency and you income needs to be nil or near enough. i am even swallowing my pride and considering borrowing some money from a friend but it is if they have the money in the first place to loan to me. i am on half pay at the moment which doesnt even cover my mortgage and getting more into debt!

 

anyhow i take it that the decison could still be reversed(?)

is it the case that i could possibly get a solicitor to do a single letter to the court to consider reversal - and in this way reduce the cost? or has the solicitor got to take on the whole case?

 

do you know what the judge meant about a new application?

 

thank you so much

 

lindyhop, what are you claiming for the time being before ET?

 

My point was to take on a rep (can actually even be a friend or a family member) for the whole of duration of the process. It all has got to do with the judges' perception thingy - can't really do much about it but the fact is that when they see someone claiming DD and enrolling a rep to defend their case, they feel more compassionate towards such claimants.

 

When you submitted application for DD claim, what incident(s) exactly you referred to, let's clarify.

[ms_smith]

Just thought

 

can i request that the next hearing is heard by another judge? i hate to think how that hearing will go if the judge is in a stressed and harried conditon again.

 

thanks

 

The next hearing will anyway be heard by another judge so there's no need to ask for such a change.

 

I am really sorry to write this but I can almost feel this judge's perception. He's being a bit cynical, a bit straightforward but I will only blame the system - which allows the public to assume any layman will be given special treatment. Nope. Represent yourself? Make sure you know what to say or do in court otherwise you loose.

[Pusillanimous]

lindyhop: Bear in mind the EJ will be someone with at least seven years senior legal practice experience (usually ex-barristers). Therefore, it is well worth listening carefully to what they say and avoid arguing unless it is an important point that cannot be overlooked.

 

If you have made any sort of disability complaint in the past to your employer (with evidence you have) then that can count as a grievance. You need to be sure that you have brought the matter to their attention and given them adequate time to resolve the issue.

 

If the disability issue is a new claim, I would put in a proper grievance first and give them a chance to sort it out.

[lindyhop]

Hi there. Ms Smith and Pusillanimous. thank you both for taking the time to respond.

 

Ms Smith i have no arguement with your comment. you are dead right. as i said, i lost out not because of the skill of my employers rep, but because of the lack of skill and preparation on my part. i had prepard only for a CMD and wasnt expecting the EJ to allow PHR matters to be introduced. a solicitor - a good one would have been able to handle it.

 

Pusillanimous. there are 2 issues from the multitude of issues that i want to include on my ET DDA which i did not complain to management about at the time, i only diary noted, although both times there were witnessed. should i put in a grievance for these matters? i take it i do not have wait for the outcome or go down the road of an appeal prior to submitting my ET claim.

 

if i do not put in a grievance first, i take it that my employers can ask that the grievances i have missed be struck out from my ET1? however what is considered adequate time to resolve? can i suggest the time limit to my employers? however both these matters cannot be resolved due to the nature of the incidents.

 

is it possible to submit the ET1 and submit the grievance at the same time?

 

Pusillanimous you are right about the EJ, his experience and the fact that you really do have to listen especially if you are a lay person. i will definately take your advice about a rep - even if it is a friend, this advice is valuable.

 

Regards

[Pusillanimous]

Tribunals are all about "Was the correct procedure followed?"

 

To skip the grievance stage would be frowned on, just as much as if the employer were to skip disciplinary stages.

 

Without knowing anything about your case or the nature of the disability, I am not able to advise what you should do. I would suggest looking at the ACAS grievance stages and follow from there.

[lindyhop]

Hi Pusillanimous

 

i will take your advice and read the Acas grievance stages.

 

please excuse for forgetting to provide you with some of the detail.

 

disability: depression, i am covered under the Equality Act, i am also recovering from a prolapsed disc.

 

the disability complaints outstanding for investigation involve what i think come under reasonable adjustments in that a phased return was agreed, part of that being a reduced workload, however on several occasions my team leader chose to ignore the conditions of the phased return and tried to

 

a overload me with work, when i raised a query about this i was told that she didnt see why i was complaining as everyone in the team had a heavy workload - why should i be the exception

had little or no interest in ensuring that i received my refresher training to enable me to undertake the work - after being absent from the job for a year and tried to get me to do work she knew i would not be able to undertake.

used psycological pressure to get me to do extra work, stating that if i didnt do what she wanted me to do when she wanted me to do it, then she would have to cancel her holiday - the team leader hadnt checked with the others in the team if they could have undertaken the work she wanted me to do before approaching me and trying to guilt me out

wanted me to do work outside of my phased hours, when i queried this i was told that she assumed that to carry out this work i would have attended work late - but this would have meant that i would have had to breach the core flexi time hours without prior agreement from management. this would have left me vulnerable to complaint from management who were already after my blood, and just waiting for me to put a step wrong.

 

additionally i discovered that just prior to my return to work, management held meeting with my team in connection with my return to work, which directly led to a so called work colleague spread the rumour that i had been difficult and demanding and wanted my own office if i was to return to work! grossly false. it was suggested by Occ Health that whilst my grievances were being looked into that my work station be elsewhere. God alone knows what this manager said to the team but apparently the team where het up and there were signs of hostility against me even before i returned.

 

the only other complaint that i can remember not being raised already was about another team member on my return to work deliberately lied about how to operate the phone system to allow me to deal with calls, when i queried the operation of the phones he became increasingly hostile. in the end i called in IT, but when they approached this work colleague the received a hostile response for taking up the issue on my behalf. the IT colleague then came and complained to me about it. i was so humiliated - it all been humiliating.

 

i had already raised a complaint about the behaviour of the team leader, and got a flea in my ear from management for my efforts, who blamed me for complaining. what i have listed here are additional and specific incidents that really fall under the same heading.

 

the phone incident will be new to them, as the gossip about me just prior to my return.

 

why did i not complain about these incidents at the time? because during all this i had just returned to the job, was already undergoing 2 grievances and 2 appeals plus an investigation. this all contributed to the renewed deterioration in my health as i had to be signed off work again. to put in a third/fourth/five grievance at that time would surely have seen me off!

 

lengthly and boring but clearer i hope.

 

Thank you for you help - i do appreciate it.

[Pusillanimous]

lindyhop: it does sound as though they are well aware of your disability issues. However, you say you still have a six-week deadline to put in your complaint about the further two incidents. In your place, I would write up a new grievance, citing what you have told us here, together with dates, names and do mention which section of the Equality Act it breaches. It sounds like victimisation to me. Are you still under pressure to work long hours by this person? Put in your grievance to the appropriate person.

 

It seems doubtful you will have any joy. However, come the six-week deadline, you may now submit the new ET1 drawing from what you wrote in the grievance. This will preempt their lawyers complaining about you not following process and appease future snooty EJ's.

[lindyhop]

Thank you Pusillanimous for your advice. i will follow it, having this morning forwarded my new complaints to my employer for investigation.

 

i have one more question that you may be able to assist with.

 

i had contacted the court and asked that they reveiw their decison not to amend my original RRA claim to include my DDA claim, however a seperate ET DDA claim allows a me a more extensive complaint. i dont know what the outcome of my reveiw request is, but i did phone up the court to confirm i no longer wanted my my review request considered. if the judge decided he would grant my review request, and grant the amendment, could i amend my DDA claim at my next PHR/CMD to include my new grievances?

 

long winded, but i hope my question makes sense.

 

Regards

[Pusillanimous]

Speaking personally, if they have already refused your request to amend your original claim, it seems unlikely they will change their decision on review. It depends on the 'EJ and ET. The one I know of, seems to automatically reject review applications.

 

Your main focus is to ensure you are within the time limits. If the DDA/Eq was a continuous act then the last act is the salient date of the act complained of.

 

What was the reason for rejecting your claim to amend? If a substantial reason, you might lay yourself open to "costs" if you persist.

[lindyhop]

Hi Pusillanimous

the reason my request to amend to include my DDA failed was down to me and my inability to argue my case well.

 

i was asked what it was that i was asking for, DD or DD and victimisation. i said the latter, he asked for dates, i gave the dates, he asked the incidents, i gave the incidents.

 

opponents queried that i hadnt provided a good enough reason for the time lag and not bringing the action before, and that what i was asking for constituted a new/different case or something.

 

not being able to challenge the judge agreed with the respondent, especially after i stated DD and victimisation for the DD- even now i dont understand why that would have made a difference -i either suffered it or i didnt?

 

sitting here now, i can explain it to you about the time lag etc- if i had been at work between April and now, im sure that there would have been more incidents, but of course they stopped as i was not there - its only the shortfall in pay to date that saved my DD as my continuing act. i didnt mention my illness, or the fact that i have been on sick leave etc or how all of it has affected my health.

 

not the time to have a learning curve!

 

Regards

 

 

 

 

 

i had written everything down for the judge and sent it in beforehand, so assumed that because i had he would have read it and gone on from there, would have stuck to the original decision by whatever judge it was to go to the substantial hearing from the CMD for my RRA as i demonstrated continuing acts and taken on board my DDA amendment as this also had a continuing act.

 

i was unprepared, and thought i would be dealing strictly with the CMD stuff

[Pusillanimous]

It could be that before victimisation comes protected disclosure. Perhaps it came across as though you had not yet pleaded the DDA with your employer for victimisation to follow. Victimisation is a legal term.

 

Did you put in a DDA grievance with your employer before the ET1 and did you mention it in the ET1? If not, it will be difficult to plead DDA victimisation in the legal sense. Victimisation comes as a result of making a protected disclosure or bringing proceedings.

[lindyhop]

Ok, this kind of makes sense.

 

i didnt verbally make it plain that i had made complaints to my employers about some of the DDA issues, but i indicated this writing. these were complaints not grievances as the grievance procedure was not enacted by my employer - i think because even though i had made written complaints to my employer they didnt have at the top 'grievance'

 

my main written complaint about my senior's disregard of my phased return hours and work load resulted in me being told of by a manager for making the complaint no action was taken against my senior i guess becasue i didnt use the word grievance(?)

 

does this make sense?

 

Regards

[Pusillanimous]

Yes. Defence barristers do seize on the fact a claimant has not used the specific word, "grievance". If it is obvious and clear that your complaint was in fact a grievance to any reasonable person then you should insist that is what it was. This is where you got tripped up by the EJ. (You won't have been the first!)

 

Is there any case law, anybody, as to whether a grievance has to be called a grievance, in particular?

 

It might be all together easiest to draw up a completely new ET1 setting out the entire DDA claim. However, you have six-weeks' leeway. Allow them, say five weeks, to respond and attempt to resolve the issue. This shows reasonableness.

[becky2585]

There's a famous case under the old statutory procedures where the tribunal found that scrawlings on the back of a cigarette packet actually constituted a grievance in law!

 

Without reviewing the specifics of the ACAS Code, I'm fairly sure a grievance is just a "written complaint", not specifically that it needs to make clear it's a grievance. If its a big employer with an HR Dept they should realise its a grievance by its content, although I suspect the tribunal may give more leeway to very small employers.

[lindyhop]

Hi Becky and Pusillanimous

responses really valuable. i am grateful that i do not now have to submit (hopefully) all of my earlier formal complaints/written concerns to my managers which were not entitled 'grievance'

 

where can i find the name for the caselaw concerned? in the meantime i can check the ACAS code thing to confirm when is a grievance not a grievance.

 

one other major concern. my substantial hearing is pencilled in for a year away - its too far away - why because the respondent put forward that the main perp in my RRA is going on Mat leave in january so they dont want the hearing to interfere with her Mat leave- this is outrageous. how can the respondent who is responsible for my current circumstance be allowed this.

 

is there anything that i can do to ask the court to bring the case forward to say the New Year before she goes on Mat?

 

Regards

[becky2585]

The ACAS Code states that a grievance can be any concern, problem or complaint that an employee raises with the employer.

Unfortunately most of the case law relates to the old statutory procedures, where a Tribunal would be far more inclined to find that a grievance had been raised, as at that time it was a legal requirement to raise a grievance at least 28 days prior to issuing proceedings. Nonetheless, these examples may be helpful:

 

Birch and 99 others v Walsall Metropolitan Borough Council and others [2010]

Martin v Class Security Installations Ltd [2006]

Thorpe & another v Poat & another [2005]

 

I would again stress that the ET will be less likely to find that letters as vague as some under the statutory procedures will constitute a grievance.

 

In terms of the hearing, often in discrimination claims the employer will be listed as the First Respondent, and subsequent individuals as the second, third, etc. If this happened in your case, clearly you have grounds to argue the hearing should be brought forward as whether or not they are on maternity leave, they are a party to proceedings, directly in their personal capacity and not in their work capacity, therefore the Mat leave is irrelevant.

 

If you only have one Respondent, your employer, then you may just have to wait if they want the person there to give evidence. Either way, trying to get a date before Christmas is a little ambitious, however one day hearings are currently being listed for February to March in our region. When does the employee go on Mat leave?