Constructive Dismissal

[TheUmp]

I am very very angry with them Emmzzi, they have basically hung me out to dry and they should not be allowed to get away with it. I want it to be made public, but not in a blog or anything like that. I would love them to be shamed and would prefer this to be in an ET and it would be there for all to see. What is in my favour is that I am not doing this out of anger, even though I am angry (Urggh) and I have no baggage or preconceptions, and will take each day as it comes etc. I have read many threads on here where people invest lots of emotion etc into their case. Hopefully, I will not have anything emotionally to lose, as if I lose, I lose as it where.

[Emmzzi]

How did they do on this one then?

 

http://www.businesslink.gov.uk/bdotg/action/detail?itemId=1081563827&r.l1=1073858787&r.l2=1073858926&r.l3=1073931239&r.s=sc&type=RESOURCES

 

You must arrange the appeal meeting within 14 days of receiving the employee's appeal notice.

This appeal should ideally be heard by a different manager.

[TheUmp]

They didn't do too well at all, it took them over four months, and only then when the ET1 landed.

I got an email on the Monday before I left from the manager who had given advice to the original decision making manager saying that he could now accommodate me. I have been under the care of my GP and stress counsellor since mid-May and was covered by a fit for work note stating that I wasn't fit to attend work.

It is this 'advice' that i requested a copy of in my request for documentation.

 

Do you think that a judge will see the late late offer as being a reasonable act, or see through it as a desperate attempt to right the wrongs?

[TheUmp]

I am in the situation this morning that I have been advised to withdraw my ET claim for disability discrimination by the Employment Law charity that has been assisting me.

 

I applied for Flexible Working in May this year to facilitate care for my disabled son and this was refused. I immediately became absent from work and applied for an appeal on this decision. Nothing happened.

 

In the meantime I was offered and accepted Voluntary redundancy, a decision that is ireversible.

 

I decided to make a claim for Disability Discrimination by association.

 

The wheels have been in motion for the ET.

 

My finishing date was set for late September. I then received notice of my appeal, which was again rejected.

 

One week prior to me leaving, I received an email from my manager offering me the flexible working that I had requested.

Even though I would never have any opportunity to receive this, the Judge at a case management discussion told my reps that this was a resolution and that I should be advised to withdraw my claim unless the employer would pursue costs (legal blackmail)

What do you experienced Caggers think of this, because it sounds morally wrong to me, although my advisers say that it is legally correct?

[Emmzzi]

Is the offer to pay back the VR and take up flexible working?

 

Yes, that is indeed a solution.

[TheUmp]

Emzzi, no it was an email saying come in on Monday, that was it! The VR was a done deal, once I had signed it could not be reversed

[Emmzzi]

Well, one option the ET can take is reinstatement.

 

This is reinstatement.

 

So why would you go to an ET to get what you have just had offered?

[TheUmp]

Hi all, I have just withdrawn my ET claim on advice from the legal charity that were assisting me, but it feels like something is not right, hence me asking the question of the Caggers on here who know how the legal stuff works.

I have posted previously but probably didnt explain myself properly, so will put the details as a timeline

Worked for employer for 24 years

Jan this year, son diagnosed with ASD (recognised disability)

Mar applied for flexible working explaining to manager my home situation telling him that son became very aggressive and anxious when I didnt get home to take him out on Saturdays

Request refused, on grounds that I have documentary evidence to refute

Off sick with stress on receipt of refusal

Immediate appeal lodged

Sent number of emails to line manager and area manager, all ignored

Manager suddenly contacted me asking if I would like to progress voluntary redundancy, that I had expressed an earlier interest in at end of last year or start of this (not too sure)

I saw this as my way of solving my caring situation and so accepted the offer

Finishing date set for 24th Sept, which is irreversible, as stated in the documentation

August, received letter stating that appeal would be heard in request of my flexible working request, (ACAS states 14 days)

In week prior to me leaving, line manager emails, saying he can now accommodate me!!

Advisers attend CMD and judge says that resolution has been received and advised to withdraw claim as no chance of winning?? and could incur heavy costs if I proceed.

The problem that I have with this is probably naive, but I thought that if you were discriminated against, then that is when the 'offence' takes place, and to then do nothing and leave me to stew for four months and then accept my request just before I leave does not seem right.

Is this something unique to employment law, as if it was say an assault that took place in March, the alleged offender could not just say sorry prior to a court case and this be accepted by a judge.

Any advice or comment good or bad would be greatly appreciated.

Forgot to say that I suffer financially on weekly basis when absent

Edited October 10, 2012 by TheUmp

[Emmzzi]

as I keep saying - there's morally right and legally right and they seldom match up.

 

I think I have answered your question already. Also you cannot withdraw your withdrawal so you're going to drive yourself nuts if you do not let it go.

[marmaris30]

Firstly, I appreciate that it might well be a hard decision to go back to an employer you fell out with.

 

However, your comparison with a supposed assault is not that useful because in a criminal case, the victim is not the claimant (the CPS is prosecutor and decides whether to proceed with the case, with or without the victim).

 

In this case you are both victim and claimant, and the defendant appears to have offered a reasonable solution to the cause of the claim. If you can be reinstated with flexible working as you originally requested, and if you can keep the redundancy money to compensate you for loss of income since, then it doesn't seem like the claim has much left to discuss.

[Pusillanimous]

It's probably academic now, but when you accepted redundancy as a solution, then in effect you voluntarily resigned? It looks like your bosses caught you out there. It would not have been the judge's place to give you legal advice, so I presume it was your legal advisers who advised you that you had no chance of winning and would incur costs. Unfortunately, some legal advisers are mediocre and what they really mean is that they cannot be bothered, especially as legal representatives can have costs awarded against them of up to £10,000.

 

Are you able to be reinstated?

[TheUmp]

Thanks for the comments.

Emmzzi, I had to let it go when I withdrew the claim, so that is over.

I do agree that Employers seem to hold all of the aces legally and they can do so wrong (morally) and still be allowed to get away with it.

My advisers told me that the judge told them to advise me to withdraw, so I'm not sure what went on there??

 

It is all over now, but having read so many people with so many varied problems on this site, it seems that even though so many of us are treated so badly, mostly in an illegal way, it is so difficult to get proper recourse.

My issue is that in taking my apparently voluntary redundancy, I have forgone ten or fifteen years of wages and extra earnings and enhancements to my pension.

 

Morally right or wrong?

Legally right or wrong?

 

Employers know what they are doing and it is not annoys me that the lawmakers have stacked everything in their favour.

 

I suppose I wanted my 'day in court' which is now gone, but when you read of people convicted of very serious violent crimes being able to appeal and then appeal again, there is something seriously wrong when you are not able to get unscrupulous employers to come to court to be held to account for their discriminatory acts.(I accept the difference between employment and criminal law, but it is no less easy to take)

 

Ah well, job search on the way!!!

 

Thanks again guys and girls

[Emmzzi]

If they offered to reinstate you take it. If it has the hours you need then you would be daft not to. If trouble arises again you can have your day in court at that point.

[Pusillanimous]

 

My advisers told me that the judge told them to advise me to withdraw, so I'm not sure what went on there??

 

Did this advice take place at a CMD? Unless it was in a public hearing, for example, in a PHR (a CMD is private) the judge's "advice" would not bear any weight. He might have warned of costs but I am surprised he told your advisers that you should withdraw, as normally, you ought to have been given the opportunity to ask for written reasons, or appeal the decision in the EAT.

 

It could be your advisers got cold feet.

[Pusillanimous]

If they offered to reinstate you take it. If it has the hours you need then you would be daft not to. If trouble arises again you can have your day in court at that point.

 

This sounds like good advice.

[becky2585]

Did this advice take place at a CMD? Unless it was in a public hearing, for example, in a PHR (a CMD is private) the judge's "advice" would not bear any weight. He might have warned of costs but I am surprised he told your advisers that you should withdraw, as normally, you ought to have been given the opportunity to ask for written reasons, or appeal the decision in the EAT.

 

It could be your advisers got cold feet.

 

 

It is completely open for a judge to recommend at a CMD that a claimant withdraws a claim with no reasonable prospects. It doesn't need to be in public and written reasons don't need to be given - the claim hasn't been struck out by the judge, he has merely given guidance to the claimant that the claim is unlikely to succeed. Whether the claimant continues is up to them - but the judge will have noted the warning on the file, which means there's a greater danger of costs if it's pursued.

[Pusillanimous]

It may be a case of identifying the correct jurisdiction. If the OP was placed in a position of being forced to accept voluntary redundancy because of her disabled son and needed fleible hours, which were denied, then there could be a sound legal argument, and the claimant should have been given the opportunity to put the case. A PHR could have done this and enabled the OP to have the opportunity to present the evidence. The judge can only go on what is given him or her, it could have been lousy pleading by the legal adviser.

[Emmzzi]

Given this is all over, what good is picking over the theoretical bones doing the OP?

[TheUmp]

Thanks for all of the comments guys.

 

My adviser did say that the judge was only advising them. They also said that because the employer had offered the requested hours, even though it was at the very last moment and I had no chance of taking them up, that in employment law, this was a resolution.

It is clear to see that this must have been advice given to management from their legal people.To use an expression, they have shafted me, and I have no intention of going cap in hand back to them for my job back, I would probably be sacked for gross misconduct very quickly as I would be unable to hold my tongue as I would be in constant contact with the person and people who made the decisions that discriminated against me

[Pusillanimous]

I know it is academic, but even if "unfair dismissal" does not apply, it stills looks like Disability Discrimination could because of the OP's association with a disabled person. It is all very well the legal advisers blaming the judge, when it is the legal adviser's duty to advise.

[TheUmp]

That is my point exactly. Discrimination by association did take place, but the advice was that because it had been corrected, then that is resolution enough

[TheUmp]

Hi all

 

Im not sure if I am on the right section, but here goes

 

My wife performs a cleaning role for a large religious organisation. Recently she was told that they were installing CCTV cameras in an area that she works in. The lady who took the minites of the meeting that made the decision, told her that the cameras were only being installed to be used 'out of hours' when 'vulnerbale' people may be present.

 

Since the cameras have been installed my wife's supervisor has made two separate comments (which my wife has diarised on my advice) regarding members of the supervision team 'watching' my wife.

 

My question to you is, what are the legalities surrounding this, and can my wife request that he cameras are switched off during normal working hours.

 

Thanks in advance for any help

[TheUmp]

Come on guys!! Somebody must have some knowledge of this matter

[ashmk]

Try re posting in the employment area. It's more likely to be seen there.

[renegadeimp]

They are well within their rights to have cameras on in the normal work hours on the "shop floor".

 

Theyve evn had a consultation meeting and gave notice in advance. however you could ask management why they the supervisors are watching while you work when the agreement for the cctv was that it would only be used out of hours.