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Quick question for any employment lawyers/experts

(20 Posts)
mumofsussex Fri 12-Aug-11 15:42:50

Joe Bloggs (not me) is considering issuing IT1 claiming constructive dismissal. He has resigned and is currently working notice. Did not want to risk leaving immediately as didn't want to risk a contractual lump sum due at the end of his service.

He has raised a grievance in accordance with the company proceedure on complaints/grievances. In his claim he was complaining about several senior managers (one in particular) and his treatment by them which he felt made his position untenable. His 'hearing' was last week and was heard/chaired by the manager he had complained about. Unsuprisingly, he came back a few days later saying there was no case to answer.

Joe Bloggs has essentially therefore (in my view) two choices. Walk away and regret not 'fighting back' or issuing the IT1. He has been told he can appeal the decision made last week but it will be heard again by the manager the complaint is about. Surely that is ridiculous? My thinking is that if he issues and IT1 and it goes to tribunal, surely they will take a very dimm view on the way the company (very huge and well known company) has behaved even without any evidence of the actual complaint? Surely their proceedure is completely flawed and the hearing should have been conducted by someone who was not involved?

Balloo8 Fri 12-Aug-11 17:01:11

Definitely issue the IT1 - an appeal CANNOT be heard by the manager that the complaint is about - that is just unlawful and would not stand up under tribunal for procedural issues. Is this person in a union? If so then the union will help and will know what to do.

mumofsussex Fri 12-Aug-11 17:08:26

Thanks Balloo8, that is exactly what I thought but just wanted to check that. Will let him know. He is not in a union unfortunately.

virgiltracey Fri 12-Aug-11 17:09:41

In order to be successful with a claim of constructive dismissal he will have to show that the action by the company was so bad that it amounted to a breach of contract. This is a high hurdle to overcome and as a result constructive dismissal is one of the most difficult claims to win. he will not be helping himself (although it is not fatal to his claim) by the fact that he is working his notice. The company's behaviour cannot be that bad or he would not still be attending work.

The company should have a different manager hearing an appeal and this would be a procedural flaw in relation to the grievance but remember this is not an appeal against dismissal it is an appeal relating to his grievnace (issued once he had already served notice)

I don't understand what contractual lump sum he would be due at the end of his notice. If he has served notice he will not be entitled to any payment in lieu of notice. That would only be payable if the company had terminated his employment and not allowed him to work his notice period.

virgiltracey Fri 12-Aug-11 17:10:55

what has the company done that he alleges amounts to a breach of contract?

ginmakesitallok Fri 12-Aug-11 17:14:28

I'm not an expert - but I would think that he has very little chance of constructive dismissal if he is able to continue working there to work out his notice - might have a claim for wrongful dismissal - but I can't see that he'd get any monetary comp for this as they're paying him what he is due?

virgiltracey Fri 12-Aug-11 17:18:24

He has no wrongful dismissal claim. Wrongful dismissal means that they haven't paid him for his notice period. He served notice and they are paying him for his work.

flowery Fri 12-Aug-11 17:23:22

It's not specifically 'unlawful' to have the same manager hearing an appeal - that happens all the time in small businesses. However the employer is expected to follow a reasonable procedure and in a huge company having a grievance and an appeal both heard by the manager being complained about is not a reasonable way of addressing a grievance and I imagine is not following their own internal procedure either.

I would very strongly advise Joe not to consider putting in an ET1 for constructive dismissal without taking proper legal advice and getting a solicitor to help him word it if he decides to go ahead. Constructive dismissal is very difficult to prove at the best of times and if it's one of the 'lots of things making position untenable' ones rather than a clear objective breach of contract, it's even harder. Especially if he feels his position isn't so untenable he can't work his notice.

A tribunal will also expect him to have exhausted internal procedures in an attempt to resolve his complaint. Although I agree that an appeal heard by the same person who heard the initial grievance who is also the person the complaint is about is pretty pointless.

mumofsussex Fri 12-Aug-11 17:26:41

hmm very confusing as a few months ago employment lawyers said he did have a case for constructive dismissal and although normally an employee would leave straight away, under the circumstances (large lump sum that would be potentially lost if he did not work notice) then he could still have a claim if he said he was working under protest to protect this lump sum which is what he did.

oh bugger, just noticed that a long post I did just now didn't post sad Basically said couldn't go into too much detail about what the company did but employment lawyers said a few months ago he did have grounds and I just posted today to seek opinions on the grievance being heard by the person complained about

virgiltracey Fri 12-Aug-11 17:29:08

Working notice isn't fatal to his claim but certainly isn't helpful because his claim is "things are so awful here that I cannot possibly work here any longer".

flowery Fri 12-Aug-11 17:35:20

What virgil said. Not fatal but not helpful.

If things were so untenable he couldn't stand it any longer and couldn't work his notice he could include that lost bonus as part of compensation claimed in his constructive dismissal claim. Unfair dismissal compensation is about financial loss as a result of the employer's actions.

virgiltracey Fri 12-Aug-11 17:37:03

If its a bonus then most schemes will say that the bonus isn't payable if you are under notice.

virgiltracey Fri 12-Aug-11 17:37:40

if its commission then he's earned it and it would be payable anyway

flowery Fri 12-Aug-11 17:38:42

If he's already instructed employment lawyers about this surely he'd want to instruct them again with regard to making an actual claim? I would really advise not trying to do this himself.

mumofsussex Fri 12-Aug-11 18:03:23

I can understand what you are saying but it is a bit complicated (but can't go into too much detail on here) Presumably there are no guarantees at tribunal so no guarantee he would get that lump sum back as part of his claim. It is a significant amount of money (over 50k) so he considered that too much to risk not getting it. In the contract it specifies that it will be forfeited if notice not worked (he is aware that other employees have left without working all notice and they have lost it).

He has consulted lawyers previously but not formally instructed them. Once again, just to clarify, I was only asking advice/opinions on whether ET would take a dimm view to his appeal being heard by person he had complained about. Thanks for all opinions to date

LoveBeingAtHomeOnMyOwn Fri 12-Aug-11 18:16:57

I'm by no means an expert. A very high union man once told me that not following a companies own procedures is a big thing in losing claims. As someone said with a large company they will have the processes in place to ensure the same person does not hear and appeal the complaint, especially the one being complained about. So my advice would be to ensure he has a copy of their procedures.

StillSquiffy Fri 12-Aug-11 18:22:55

They'd only take a dim view if the size of the company was big enough to allow for a higher level of seniority to hear the appeal, but decided not to use that higher level. Your DH MUST put in the appeal regardless, and follow everything to the letter from his side.

mumofsussex Fri 12-Aug-11 19:05:01

Thanks for all comments, very helpful. By the way, it is a HUGE company and there must have been plenty of other senior members of staff that could have heard the appeal. This is the second time I'm aware of this happening. The last time the person who made the complaint said they did not feel it was appropriate to be heard by a particular person and his concerns were completely disregarded.

Everything claimant is doing is by the book, it appears to be company not following their own rules and proceedures (he has a copy of policy book) He will be filing IT1 shortly but it is nice to have views from other people on this.

Thanks again everyone.

BBQFrenzy Sun 14-Aug-11 16:53:13

mum of sussex A really good book is the employment law advisor's handbook by the Legal Action Group (LAG) - It guided through my dispute with work which I was successful with and although am a lawyer, think it is written very clearly so as to be helpful to someone without a legal background

mumofsussex Sun 14-Aug-11 18:51:40

Thanks for that BBQFrenzy will pass that information on

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