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DO
IT YOURSELF
A)
Deciding to Claim-Unfair Dismissal
(including Constructive
Dismissal)
There is no reason in
Principle why
you should not take on your employer in an Employment Tribunal,
provided you have one years service. In some
cases , that is to say a simple fact based "unfair" Dismissals, this is
probably the best option , provided you can put a case together ( and
most people can - its what they give a solicitor !). Tribunals are very
experienced , determine their own facts and act even-handedly to
litigants in person. The Burden of Proof is on the employer to show
that he dismissed fairly , that is to say 1) That he had an allowed
reason for dismissal and 2) That this reason was a sufficient reason (
that is to say sufficient cause to dismiss) and 3) That he overall
applied a fair process ( for instance allowed proper meetings to take
place , carried out proper investigations of fact , allowed
representation and rights of appeal. In addition to acting reasonably,
an employer has to institute a statutory process which ensures
that
before taking any action to dismiss or discipline an employee , the
employee is made aware in good time of the matters against them and the
basis for the complaints the employer brings against them. Failure by
an employer to apply the statutory procedure , for instance dismissing
over the phone or without proper notice of hearings or failure to send
out proper letters explaining the matters to be dealt with at
disciplinary hearings , failure to allow representation or rights of
appeal , will all be a breach of Statute and will render dismissals
automatically Unfair and increase awards. I have provided a link in the
previous page to the ETS web site and if you still wish to check on the the
merits of your case there is a link to the ACAS and the CAB site and there
is an excellent booklet to download from Tamara Lewis of the
Central London Law Centre. You can
also download ETS Publications. If
you decide to claim just download a form , look on the site for the
relevant Tribunal office , fill it in and send to the Tribunal or do the whole
lot on line.
Give some thought to the Grounds of Claim. Give a concise
chronological description of fact as to why you think your
dismissal or other grounds merits a Claim to a Tribunal. For Constructive Dismissal you must lodge a written grievance and wait
28 days before sending off the Claim Form. The letter of resignation,
if it contains the essence of the complaint, may at a pinch, be taken as your
grievance BUT but it is much safer to make a separate grievance , labelled as
such. There are time limits so
always make sure
any application made within 3 months of the effective date of
termination.
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B)
Processing the Claim-Unfair Dismissal
(including Constructive
Dismissal).
The
form you sent off is
known as an ET1 and as soon it is received by the Tribunal it is
allocated a number and a Response form is sent off to the employer (
ET3) for their reply. This will be returned completed and sent back to
you. Both parties are then free to require details from one another and
access to documents , known as Disclosure. Its usually the employee who
has the greater need of documents and further details since the
employer generally controls both and it is important to realise
this. If you do not ask you very well may not get what you need. It is
also that the case that nearly all employers engage some sort of legal
representation, some very poor , some very good but most just average.
Sometimes the Response requires more explanation. Suppose for
example the employer says "I selected the employee for redundancy
on the basis of a fair criterion" , this cries out for an explanation.
You should write requesting the employer to provide details of his
selection criteria. That is just an example , the instances of
inadequate Pleadings are legion. If the employer fails to supply
the information you need to assist your evidence then you can
send a copy of your original letter (and any inadequate response by
employer) to the Tribunal with a request for an Order forcing them to
give the information. Make requests for any documents you require , for
instance handbooks , contract of employment, investigatory material,
minutes of meetings, background and personal notes, staff statistics
etc-in fact anything you feel will help your evidence. You cannot move
outside the facts of the dismissal and nor can you require completely
oppressive details but nevertheless you should make sure you have what
you reasonably require for the hearing in order to get across your
points.
Employers who are legally advised sometimes take points of
"jurisdiction". This may be a time point i.e they say that you made a
late claim. Or they may say that you did not have the required
length of service for some or other reason or in a constructive
dismissal that you did not raise a grievance before making the Claim
etc. This will trigger a pre-hearing and the matter will be determined
by the tribunal on its merits. If the jurisdictional point against you
has merit the Claim can be struck out there and then. If not it
proceeds to a Full Merits Hearing.
You may be threatened with Costs- generally these threats should be
ignored unless your case is completely without merit. More and more solicitors
are using overtly bullying tactics ( they should be ashamed !)
against unrepresented Claimants, even to the point of purporting
to use the tribunal process against a Claimant before they
have even lodged a Response . In one case
I was threatened with cost 10 times over the course of the case, which was excessive even for
the firm involved- they forked out £7K later. I have seen adverts for no -win no fee
brokers who stress the risk of costs if you do a claim yourself . This
is misrepresentation. There can be cost awards but it is very rare that
this happens. There are checks and balances built in - for instance if
the tribunal consider your case to be without merit the tribunal
will call it in , probably at the request of the employer's
representative, and you will be warned about continuing and the risk of
costs. Its then up to you. If you misbehave in the process then again
costs can be awarded but again there will be warnings. There is a risk but in my
view tribunals only award costs against the most intransigent
Claimants or the most misconceived Claims.
You
may get
offers to settle - these should be treated seriously. Factors to take
into account are the jurisdiction you are in , what statutory payments you should receive, deductions
from wages made ( if any), length of your service, whether you have
gained
alternative work since being dismissed and the merits of your case and
whether any admissions are made by them.
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C) The Hearing
Like
all formal processes the best
results are obtained by careful preparation. The Tribunal will involve
itself in these preparations and issue Directions for the preparation
and exchange of Case Documents and Witness Statements. Almost always in
a Dismissal case the Employer will be ordered to produce the Bundle of
Documents and send a copy to you. Before then you should send
everything you want including in the documentary evidence to the
employer or their Rep. Make sure that the completed Bundle, when sent
to you, has everything you need ; if not bring 6 copies to
the tribunal of what is missing.
Written Witness
Statements are essential in the hearing and you should take time to
prepare them. They don't need to be in formal English but they do
need to have all the information you want to tell the tribunal and be
structured in a way that gets that across. Six copies are required at
the hearing.
After each side has completed their statements they are exchanged
before the hearing - each side see what the other is saying. Make a
note of what you want to challenge in the other side's statement. For
instance you may not agree with a fact that is given. You will have the
opportunity to challenge the employer's written evidence at the
hearing. The challenge is in the form of cross examination. You simply
say to the witness " I do not agree with what you say at ( location of
disputed fact in statement) .... I say that (give correct fact) is the
correct fact". Do that for each and every point you wish to challenge
taking care to discuss the replies you receive by advancing further
points. It is not an easy process but in my experience Tribunal
Judge will assist in helping to frame questions distilled from the
point you want to make. It should not put you off making a claim.
If you feel that additional witnesses can help , ask them to attend. If
they won't then you can obtain witness orders from the tribunal but you
will be asked what points of evidence they can bring before an Order is
issued. It is a facility that can greatly help your case however you should
consider very carefully how such witnesses can help to build up the
evidential weight of your case and how reliable they may be at the hearing.
After all the evidence has been heard each side are asked to give a
summary submission of their case and the tribunal retire to give their
decision which in many cases they do on the day. Don't worry if you
cannot do the submission , the tribunal will be considering the facts
they have heard. If you win the Tribunal will consider what to award
you. Make sure you bring to the tribunal all your evidence of loss- for
instance failed job
applications , lists of all jobs you have applied for. You need to
convince the Tribunal that you have suffered a loss that is the
consequence of your dismissal and that you have sought to mitigate that
loss by searching for alternative work. There is not a standard award -
it depends on what you have lost less anything you have earned. Loss of
earnings are drawn to the date of the tribunal plus an element of loss
after the date of the tribunal in terms of further weeks. If you get
work but less than what you earned before these are called "continuing
losses". Generally future loss is limited
to 13 - 26 weeks but can be much less or even zero but it depends
on
circumstances. Losses
to the date of tribunal are subject to "Recoupment" , that is to say
the award paid to you is reduced by what unemployment benefit you have
received.
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Summary
Points
If
you think you are going through an Unfair process keep notes and copies
of documents for later use.
Insist on representation at any meeting. It is not a favour -its a
right.
If you don't understand what your employer is telling you about the
issues seek clarification at ALL stages.
Time Limits to
bring
a
Claim are taken seriously , if you claim outside the 3 month limit you
may very well have your Claim Struck Out.
When making the ET1 Claim make sure you include all claims you
have , for instance claim (in the appropriate boxes) for unpaid notice
, wages not paid and any holiday accruals plus any termination
payments, if appropriate.
You need to lodge a grievance to your employer before making a
Claim for wages or holidays, constructive dismissal or
discrimination whilst still employed ( detriment at work). If you
are dismissed ( for any reason) no grievance is required to make a
Claim. |
B) Manage the process
Make sure that you have
all the documents you need to run your case. If not request the
employer to supply what you need .
Always deal with the nominated Representative if the employer appoints
one.
Make sure that you understand what defence the employer puts forward.
If the employer has made vague or evasive Pleadings seek Further
Particulars from them , using the tribunal in the event the other side
refuse to supply the information. Use the tribunal to assist with
Orders of
Disclosure of documents.
Use the time between the Response and the hearing to research your
case. Generally Unfair Dismissal Claims are straight forward issues of
whether the employer acted "reasonably" and no legal knowledge is
needed but if you want to access case law there are a number of sites
that produce written Judgements of appealed cases. These may help you
decide what legal issues need to be determined.
Consider offers to settle seriously and objectively.
Case Law
Employment
Appeal Tribunal
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C)
The Hearing
Collect or obtain all the documentary evidence you
need. Copy and send to the other side. Make sure you get reciprocal
disclosure from them.
Check that the final collection of documents for the hearing contains
everything you sent them.
Prepare a written witness statement and exchange with other side .
Check other side's statement for challenges. Prepare a list of areas of
their evidence you do not agree with.
Prepare list of challenges based on what you disagree with in the other
sides statement. Follow convention in the blue area across the page.
Consider involving additional witnesses but only if their evidence assists your case. Apply
for Witness Orders in good time for the hearing. Late applications may
be made if an issue arises at the exchange of witness statement page.
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Pros & Cons of
making own Claim.
Pro: No legal fees or Commissions and you can run your
own case. No bar to success.
Cons: A considerable commitment in time and nervous energy if done
properly , steep learning curves at times and degree of single
mindedness when legal challenges come in.
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uploaded 03/10/08
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