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Employment law help required please(18 Posts)
Hi,my OH was asked to attend a disciplinary meeting re a H&S issue.The meeting was brief and he was sacked on the spot.An appeal followed,company decision stood .He had been there 14 years without a blip on his records.We contacted acas,who then advised us his old company would be willing to settle on a commercial basis.confident that if it went to tribunal they would win.Is it upto my OH to suggest a figure or do we wait for them ?Any help would be gratefully received..thank you in advance.
If his company have told ACAS they are prepared to settle I would expect them to come up with a proposal for your partner to consider. When ACAS told him his company were prepared to settle did they not tell him what would happen next?? He should contact the person he is dealing with and ask what is happening.
And watch the time limit for lodging a claim for unfair dismissal (3 months ?)
Acas are not mediators in situations like this. Reading between the lines acas may have contacted the company to discuss the "unfairness" of his dismissal and the company knowing that they are in the wrong have stated that they will be willing to settle out of a tribunal hearing. They may say that they are confident they would win a tribunal but to offer a settlement now means they know they will lose.
My advice is to get all the information that you can regarding the dismissal and log a claim for unfair dismissal immediately with the employment tribunal. Once the case is accepted you shall be allocated a mediator that will work and legally communicate between OH and ex employer. Their aim is to see if someting can be worked out before it gets to an actual tribunal hearing.
Don't enter into any discussion with the employer get legal guidance either from the mediator of the tribunal or if you can afford it see a solicitor. You can also ask for an employment specialist in the CAB. But start now the clock is ticking .....
Thank you for your reply..the acas rep emailed saying that the company requested to be informed whether he may consider resolving a potential claim on this basis and what he may be seeking in terms of compensation.This is where im stuck,do i suggest a figure and what do i base it on or do i keep silent and wait and see ?
Yes the company are adamant they have conducted a fair and robust investigation and are confident they will be able to defend any claim against them.I'm not sure how to reply to individual messages,so apologies if i've messed up,but Thank you x
There are many things to take into consideration when working out a potential figure. A tribunal will normally calculate a fig based on a number of things :How much his wage was before being dismissed, loss of earnings based on how long it took him to find another job (and they will expect evidence of job searching and applications made) any loss of earnings in comparison to his old wage against the new, his age, loss of pension (if any) etc etc.
It will be up to the person making the claim to show his loss, the tribunal can even award that he be given his job back.
My advice will be to go ahead with the tribunal application you could spend valuable time trying to agree a figure and this company could pull out of a financial settlement at the last minute leaving you with nothing and past the date of making an application ...cover your back you can always withdraw after.
May be well worth you seeing a solicitor for some advice many do a �50 hour session and you may qualify for legal aid.
Miller, acas do conciliate before a claim is lodged at tribunal. Although the Op's husband does need to keep an eye on his time limit for making a claim as that is his responsibility to make sure his claim is made in time.
OP, in negotiations sometimes the employer will put forward an offer first, other times they want to see what the employee's expectations are first. There isn't a right way or a wrong way for these discussions although it is daunting if you are not represented. It sounds as though the company want your dh to start the ball rolling with the negotiations so he needs to think about what he wants to resolve this without going to tribunal. His conciliator can't tell him a what to put forward as an offer (they have to remain impartial) but they can explain what a tribunal would look at if he were to win and the sorts of things they would consider during an unfair dismissal hearing.
settlement agreements usually take into account the risk of litigation (even if everyone swears blind he's got a cast iron case there's always a risk that the tribunal won't see it that way, same goes for the employer). Many people work on the principle that certain money in their hand is better than potential money some point in the future. Settlements can also cover things like references that tribunals don't which can make them attractive.
Employers sometimes make commercial settlements which are where they are fairly sure they will win but make an offer below what the claimant is looking for because it is better than the time and hassle spent defending a claim.
If your husband puts a tribunal claim in he will need to tell the tribunal what his losses are anyway further down the line. If you need help it can be worth seeing if the cab can give some advice but they are very busy so there can be a delay.
*disclaimer: it is a while since I was actively involved in this type of stuff (although I still work in an employment law environment)
To those saying the clock is ticking, it might not be if the OP's OH is taking part in early conciliation. It's now mandatory to contact ACAS about early conciliation before making most types of employment tribunal claim. And while you don't have to take part in early conciliation as long as you contact ACAS, if you do the process pauses the clock.
OP, as Amummyatlast states it is now compulsory to go through ACAS pre conciliation, your OH cannot just issue a claim at the Tribunal, it will be rejected. If ACAS conciliation falls through he will need to pay £250 to issue a claim at the Tribunal and a further £950 for a hearing unless he qualifies for remission.
In terms of compensation he needs to claim 'basic award' which is calculated the same as statutory redundancy pay. In terms of 'compensatory award' the maximum the Tribunal can now award is the equivalent of one year's salary which is capped at £76,574. So if your OH earned £15k a year, his max compensatory award is £15k. This includes loss of pension contributions(if relevant). Generally speaking a 'commercial settlement' means less than £10k. If OH ends up in the Tibunal he will need to tell the Judge what compensation he wants.
Ask for a bit more than what your OH is actually willing to accept. First offers are rarely accepted. It doesn't really matter who makes the first offer.
Have a look at this blog etclaims.co.uk/ it looks a bit basic but its actually written by two very respected barristers. Please note that employment law has changed massively since 2012 so be careful when looking at older articles.
It may be worthwhile instructing a solicitor for one hour just to get the basics. There is no legal aid for unfair dismissal.
See this is why it is dangerous to rely on randoms on t'internet for advice on important things ( )- rushed or ill thought out phrasing can mean posters mislead folks by accident. When I said that the responsibility for keeping an eye on time limits was Op's husband's responsibility I meant overall (so if ec doesn't work he has to know when his time limit is so he doesn't miss out. This can particularly happen if people want legal help with the forms). The clock starts again once a certificate is issued so its an important thing to know.
OP some professional advice (paid or via cab) may be really helpful if you are feeling out of your depth. 1) you can get an idea if the strength of you're case (to know how strong your negotiating position is) and 2) to help quantify his losses so you know where to pitch your offer. You don't have to have them represent you all the way through the process.
Yes the company are adamant they have conducted a fair and robust investigation and are confident they will be able to defend any claim against them.
What are you and your dh's thoughts on the fairness of the process? Did the company follow documented procedure and was the type of h & s issue listed as possible grounds for gross misconduct? (In terms of procedure, was your dh given advance warning of the issues to be discussed at the hearing; was he told that the outcome might result in his dismissal; was he asked if he wanted to be accompanied; was he given the opportunity to state his case at the hearing?)
Obviously the more evidence you have, the greater your leverage and chances of obtaining an appropriate settlement.
Just a quick update..we stated what we thought would be acceptable,after reading everyone's helpful tips on here.Thank you to those who did :-D Their offer was naff..6 weeks pay and 8.5 days holiday.We stuck to original terms and yesterdays response via ACAS was they are going to consider whether they are in a position to increase their offer.We have more things in our favour than they do.Quick question are ACAS duty bound to relay our emails or do they just outline the points to them? Thanks again
Not sure about the answer to your question but if your husband's company thought they would win they would most probably not be offering a settlement at this stage (although it's true some employers will settle even when they are in a good position to avoid fighting a claim). Yes their first offer will be naff all, what you need to do is decide what the minimum you'll accept will be, ask for something a fair bit more than this and then negotiate back if they don't accept your original offer. You're in the 'that's ludicrous' stage - ie both sides think the other side's offer/request is ludicrous until you try and meet in the middle. So go in high to begin the negotiations.
If they don't offer your minimum after you've finished negotiating then what will you do, will you fight the case at tribunal? Have you had any advice as to how likely you are to win?
The ACAS rep has just phoned my OH and said they are sticking to their original offer,as far as they are concerned they have followed procedure.We know differently ! If he was happy to settle he could have it in the next pay run(next thursday) i feel this is just dangling a poxy sized carrot.I feel so strongly that he'd have a good chance of winning,but i'm at a loss with what to do next.Do we stick at it ? Or get a solicitor to pick holes in it ? Thank you
You need to get a solicitor to pick holes in it. You could try and go no win- no fee, if the case isn't strong no one will take it on. Hard to advise further without knowing the details of the case. How much money/stress are you prepared to go through to fight it. Although sometimes it can be more stressful not fighting something if you really feel you are in the right.
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