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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46154
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, I was made redundant just over a year ago. I was paid

Resolved Question:

Hi,

I was made redundant just over a year ago. I was paid £80,000 for 24 years service based on 24 months salary. I don't therefore expect to be able to take a claim to the employment tribunal for unfair dismissal.

In the 3 months I remained at my employer after notification of redundancy I raised a grievance regarding being made redundant. I felt the consultation process was flawed and that my job still existed and was being carried out by contractors. I think the evidence is now clear that that is what happened.

The internal complaints process should have taken a matter of weeks but has gone on and on. My final hearing is next week (original complaint was made around October 2012)

I believe I have evidence to show that my employer
a.withheld evidence from me throughout the complaints process
b. carried out superficial investigations
c. repeatedly broke its own policies and procedures by causing unexplained delays whilst still insisting that I meet every deadline for providing information and attending hearings
d. made misleading and untruthful statements
e. was systematically biased

My question is - is there any other avenue other than an employment tribunal?
Can a separate complaint be made for to the tribunal or a court for breach of contract based on the fact that I should have expected an open, clear, unbiased and honest handling of my complaint.

The entire process has gone on for more than 17 months and has been a shambles which has left me feeling pretty exhausted and angry. My employer appears to act in a way designed to deliberately cause delay and make the process as difficult to follow as possible.

Any advice would be welcome.

Thanks
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Did the employer have a specific contractual policy which it failed to follow?

Customer:

It was a large nhs trust. with a lengthy and detailed policy for handling complaints and grievances

Customer:

I have been getting some assistance from my union but the advice is often wrong and fairly general.

Ben Jones :

did you get another job after the redundancy?

Customer:

no. I have been to several interviews. the main problem I am finding is that being with that employer since 19 years of age I do not have the qualifications to meet the requirements of the jobs I apply for. a lot of my time was spent on things fairly specific to that employer

Ben Jones :

At this stage tribunal is out of the question – you only have 3 months from the date of dismissal to submit a claim and it appears you are now out of time to pursue it through there. It is irrelevant if you still have a live appeals procedure as it is the date of termination that matters.


 


So the only other option you have is a potential breach of contract claim to be submitted in the county court. To be able to make such a claim you must first be able to show that there was a contractual policy or procedure in place, that the employer failed to reasonably follow it, that these actions resulted in losses to yourself and that these losses can be attributed to that breach and were reasonably foreseeable. There is a lot to prove.


 


So you must be able to show that the failure to follow the policy has resulted in you incurring losses. This will be difficult. This is not about the breach of policy resulting in your dismissal, this is about the complaints procedure not being followed and showing you have actually suffered losses as a result of this would be difficult. Such a claim will not just compensate you for the failure itself, it will only compensate you if losses have been incurred. It will also not penalise the employer – the aim is to simply compensate you for the actual losses you have suffered based on the employer’s alleged breach.


 


So with the employment tribunal no longer an option, I would not say that a breach of contract claim in the courts will be the answer I’m afraid. I know it may be the only option you may have left but it does not mean you should blindly pursue it just to ensure you take any action against the employer.

Customer:


If I were to state I am considering the county court action (if say my union was to fund it) I think it may mean I am treated more seriously and fairly. presumably witnesses can be made to give evidence at that court? I am asking for my job back so it may be that agreeing to this would be more favourable than the employer perhaps having to commit perjury or at least be shown as a tremendous waste of taxpayers money. any thoughts?

Ben Jones :

there is nothing stopping you from threatening court action to assist ion your negotiations but the Council will have its own legal advisers who will asses your case and your prospects of successfully bringing in a claim and if they establish that your prospects of success are weak they may hold out, refuse to settle or do anything, call your bluff so to speak and allow you to sue them, they can then defend it as necessary and even pursue you for costs if you pursue a claim with no reasonable prospects of success. The issue is that there is no right or wrong answer to this - it depends on the employer, it depends on the people making the decisions, it depends on what their legal advisers believe should be done - it is impossible to predict

Customer:

what is the minimum amount of loss that you could pursue at that court. is it an area where a solicitor could act on a no win no fee?

Ben Jones :

there is no minimum you can claim for but it is unlikely a solicitor would act on a no win no fee in these circumstances. Also such arrangements only really work if you have a strong chance of success, which in this case is questionable as you may not be able to link the breach with any specific losses incurred.

Also this is a separate issue but there is a potential flaw in your argument for unfair dismissal - you mention that your job continued to exist and was carried out by contractors - that is entirely possible and legal. The requirement for redundancy is that the employer has a reduced need for employees to carry out a specific job. So the job could continue to exist but the employer requires fewer employees to do it and can instead replace them with agency staff, contractors, volunteers, etc

Customer:

would the easily proveable travel costs of at least £100 to attend the trusts hearings be sufficient reason (if nothing else was proveable) to pursue a claim?

Ben Jones :

potentially yes but I wouldn't say it is advisable just to prove a point - you still need to pay a claim fee, an allocation fee and a hearing fee and your costs will probably be greater than the sums you are pursuing

Customer:

Thanks for beating me up in a nice way. It was I need to hear.

Customer:

That said I did represent myself and win at the court of appeal in London.

Customer:

Sorry I keep pressing return when I finish a sentence. I wouldn't want to go to court I just feel that if I win (which I feel I would) and I don't get penalised for costs because the judge thinks i'm a pratt - the threat alone would make the trust see sense.

Ben Jones :

Well if your claim is for less than £10k it would be the small claims court and each side pays its own legal costs but there is still a chance that if you behaved unreasonably or pursued a claim which obviously has no prospects of success you could still be penalised for costs. Above £10k then you can be made to pay the other side's costs if you lose so the risks is obviously greater

Customer:

Small claims appears far less threatening to me. I know I appear a pratt but my buttons have been well and truly pushed over the last 15 months.

Customer:

Pressed return again by mistake.

Customer:

Thanks for your time. I will look into the small claims and see if anything works.

Customer:

Big part of your job seems to be counselling. Thanks for being so patient.

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46154
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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