Unfair Dismissal: Process?

[tibar]

Hi there, I am posting regarding my nephew (MN) who has been employed as at a Stone Masons for twelve years. In March this year he was off work for several weeks as he had to have an operation for a double hernia, caused incidentally by the heavy lifting at work. Upon return to work he was told by the Boss that there was very little work and he would have to "let him go" he then offered £1000 cash if he would accept and leave. MN refused the offer and although in a state of shock intimated that he would not leave voluntarally and if sacked would seek to take action, he then left for home.

 

Most of MNs work entailed placing graves and erecting headstones on them. There was a mix up with one of the last jobs he undertook (erecting a headstone at a remote churchyard) prior to his surgery and his boss has now laid the fault at MNs door and has sacked him, in writing, for Gross Misconduct. In the letter he states Gross Misconduct and then wishes him well in the future:evil: No verbal or written warnings were ever give during the whole twelve years he has worked there. MN strongly disputes that the mix up which has been cited as the reason for the dismissall was his fault and is awaiting phone records to prove he rang in to the mason yard at the approx time. He rang in to clarify what to do and was told to proceed and all was OK. The work is obviously very strenous and to erect headstones is deemed to be a two man job, MN was very often fored to work alone as he was in this case even though his boss was fully aware he was awaiting imminent surgery and he most certainly should not of been sent out alone.

 

The boss subsequently dropped off £1000 cash at MNs house and he has given it to my wife for safekeeping he has not formally agreed to accept it, in fact I dont think he was at home when it was dropped off, I will clarify this with him, it is available at any time to repay.

 

There is another and very unpleasent aspect of this case. MNs late father was of mixed race and MN suffered much verbal racial "jokes" from the boss, who knew his father, he was told "its just a bit of fun". One typical comment was on a very hot day he said to him "put plenty of sun cream on, we dont want you looking like your dad" he did not make any formal complaint as the boss is very intimidating and he has little doubt he would of been out of work. Finding any wittneses would be difficult. The comments ceased upon the death of MNs father.

 

It seems to me a very disturbing case and I am asking for any advice/opinions on where to go from here. MN has gone to the CAB and has been given some info regarding leagal aid solicitors. He is subsequently experiencing difficuly getting through to CAB as thankfully he has found another job and can only ring at certain times hence him requesting help from me. His new job is through an agency and could end at any time.

 

My questions are. If I went with MN to see a legal aid solicitor would it be advisable for us to prepare a detailed statement outlining the events?

Would the racial abuse be deemed relevant even though the boss would obviously deny it and there is virtually no chance of providing witness statements?

Would it be advisable for me to go to the mason yard and repay the £1000?

 

I would be very grateful for any comments and opinions. Many thanks. -- tibar

Edited July 17, 2013 by tibar
spelling

[steampowered]

There is some information on legal aid here: https://claonlineadvice.justice.gov.uk/. It may be worth investigating but you should know that legal aid is generally not available for employment cases. If you can't get it on legal aid I imagine there are plenty of solicitors who would do it no-win-no-fee. As MN has been employed 12 years, any compensation for unfair dismissal would be substantial. At some point he may be asked to prepare a detailed statement, and this may be helpful to the solicitor, but probably not strictly necessary for now.

 

There is no need to return the £1000. He will not be deemed to have waived his claims by accepting the money. This is because you can only waive unfair dismissal claims in a signed, written agreement which identifies a legal adviser.

 

I would think carefully before running the racial discrimination issue. It seems that the dismissal was not due to discrimination, and you did not mention any particular detriment suffered due to the remarks ... so although he might get compensation for damage to feelings the amount would probably be pretty low. Alleging discrimination greatly increases the complexity and difficulty of cases (and thus the legal fees you would pay, if you are suing on a paid-basis or succeed on a no-win-no-fee basis). It is also a very confrontational accusation that may reduce the chances of getting a settlement. Obviously this is something to take legal advice on.

 

The other thing to consider is whether the employer would be good for the money if you did sue him. One idea would be to calculate how much he would be entitled for a redundancy payment, and agree not to go to Tribunal seeking the higher level of compensation for unfair dismissal if redundancy is paid. I expect a statutory redundancy payment would be much more than 1k.

 

Also, note that Employment Tribunals are currently free. Fees are coming at the end of this month for claims filed after the deadline - for an unfair dismissal case I believe you would be looking at a total 1.2k for the issue fee and hearing fee.

[tibar]

Many thanks steampowered I will relate all your info back to him and see what he wishes to do. One thing that he is most concerned about is- Gross Misconduct as the reason for dismissal, I presume that any favororable settlement would also include that this is removed, is this correct? You mention calculating how much would be entitled for a redunancy payment and avoid the tribunal if the higher limit is paid, can you advise me on how to do that? I am very very grateful for your help. Regards. -- tibar

[Ell-enn]

Hi there, you can use this to calculate redundancy payment https://www.gov.uk/calculate-your-redundancy-pay

[tibar]

Many thanks ell-enn, that link is very helpful we will work on it together. Another point I did`nt mention; he is currently seeking a claim for work related injury, via a no win no fee solicitor, for when he was hospitalised due to the hernias. Would that have any impact on the case if it went to tribunal? I dont think he started this action prior to the dismissal but I will need to confirm that with him. Again very grateful. Regards. -- tibar

[steampowered]

A good settlement agreement would include a promise by the employer to give a neutral reference. This is not something you would get from the Employment Tribunal unfortunately.

 

A personal injury claim shouldn't impact a Tribunal claim ... but the employer wants to settle, he would probably want to settle them both at the same time.

[tibar]

Again many thanks, learning a lot today. Kind regards. -- tibar

[tibar]

This case has now started we have submitted the ET1, just in time. The employer has made an offer which falls far short of our settlement figure and it seems, for now at least, that we have reached an impass. No procedures were followed by the employer such as a disciplinery meeting or even a written reason for the dismissal. Am I correct in assuming that because of this the tribunal would reach a quick verdict in our favour? Or would my Nephew still have to take the stand, so to speak? He is becoming nervous and I would like to reassure him. I still feel it will be settled before then. Regards and many thanks. -- tibar

[Emmzzi]

how does the figure compare to a redundancy payout?

 

would you be barred from a PI claim?

[tibar]

Thanks Emmzi, Yes he is intending to pursue an injury claim but have not started as yet, waiting to see what is forthcoming with the unfair dismissal. The figure we have asked for is the calculated redundency plus about half as much again as compensation. The employer has offered a lot less and states he will offer no more. I dont know the person but my nephew says he is very stubbon.

 

Just wondering that as procedures were not followed would the tribunal, if it went that far, view the failure to follow correct rules as a reasson to find in our favour or would theey still want to hear all the evidence. My Nephew is rather timid and he is frightend by the prospect of speaking at a tribunal. He will do it if necessary but I am just trying to reassure him. Regards and thanks again. -- tibar

[Emmzzi]

If you get an offer of the redundancy amount and are free to pursue PI I'd take it.

 

The ET will want to hear evidence; they are not going to make a ruling on paperwork alone. It's nothing like a full court though - it'll be a wee room with a few people in it. Nowt like Rumpole of the Bailey. Usually no spectators, or maybe a student or two.

[tibar]

Thanks, yes we will take a resonable offer but the figure so far is way short of that, not even a third of the redundancy. I will relate your info to him. Regards. -- tibar

[steampowered]

If your nephew is concerned, he can go to the nearest Tribunal and observe an unfair dismissal case in action. Tribunals are open to the public.

 

You will shortly find out what the employer's position is when he files the ET3.

[tibar]

Thanks steampowered, I will pass that on. Very pleased that we will see their response shortly it should make matters a lot clearer, at least for me as I have, to a large extent, only heard one side as yet. Very confident though on what the reaction from the employers solicitor so far has been. One other point I would like to know, does the tribunal, if it takes place, be at the nearest geographicaal point to the employer`s address? The office dealing with the ET1 is many miles away. Kind regards I am very grateful. -- tibar

[steampowered]

I believe cases are normally heard in the Tribunal closest to the employee's former place of work.

 

I wouldn't read too much into what the employer's solicitor has said. They always say something along the lines of "your case is hopeless and has no chance of winning please withdraw it". But it should be obvious whether this is true or not from what is said in the ET3, the employer will need to decide on its strategy.

[tibar]

Many thanks steampowered. Looking forward to viewing the ET3.

 

Another point I have thought of, sorry to keep asking different things, my Nephew thinks he was actually sacked for questioning some of the practices being carried and for lack of work. He feels that the employer has concocted the misconduct charge as a way to be rid of him. Would MN be allowed to state at the tribunal the reasons HE feels he was sacked or would they just be concerned to find out the facts of the misconduct charge. IE if the charge was merited yes or know? Hope I am making sense. Very grateful to you. -- tibar

[steampowered]

No worries. Yes he would state at the Tribunal the reasons he feels he was sacked. Although note that he should not just be describing his personal opinion as this holds no evidential weight. Instead he needs to focus on outlining the facts which stand behind his opinion, and hope that the Tribunal reaches the same conclusion as him based on those facts. All this background information would need to go into his witness statement.

 

In reality it is difficult to prove what reason an employer had for dismissing someone where there are multiple possible reasons. I have seen people get badly caught out through wayward emails and text messages, but difficult if there is nothing in writing. If the Tribunal thinks the misconduct charge is concoted and there is no other potentially fair reason for the dismissal it is likely to conclude that the dismissal was unfair.

[tibar]

steampower: - Many thanks. as ever. Very pleased that he can hve his "day in court" so to speak. altough it is not, most ceratainly, what we wish for. I can`t begin to excpress my gratitude to you steampower and all caggers. It is, quite frankly amazing how much people help each other, and just for the sake of it.

 

In this case the employer has now upped the offer (today) It is still very low, and it has been declined, I am however almost now sure that it will not go to tribunal, I shall update Kind regards to all. -- tibar