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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47424
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I've been off work number of months with work related

Customer Question

I’ve been off work for a number of months with work related stress which has exacerbated a disability my employer are fully aware of. The WRS has been caused by bullying/harassment and disability discrimination by a manager. I have exhausted the grievance and appeal procedure and neither were upheld purely on the “balance of probability”. Higher management are aware, have been all along and simply say “my concerns were unfounded” despite one other co-worker making an informal grievance about the same person.I’ve had several OH reports done in addition to reports by my GP and specialist. They state I am too unwell to return and the WRS I’ve been subjected to has not only made my disability worse but has completely affected my mental state. The OH report suggested a phased return perhaps in 6 weeks but under another Manager as I previously had no MH issues.I had a meeting with the employer with no advance warning by them. They wanted to know when I’d be returning. They’ve chosen to disregard the medical info submitted despite it stating I have 2 conditions which fall under the Equality Act 2010. They have said they will not provide another boss as an adjustment and I must choose if to return under the same circumstances, resign or be dismissed.As part of my grievance, it mentioned 7 acts of disability discrimination, 3 including previously failing to make reasonable adjustments. Could this (as it impacts on the same disability) be considered a continuing act by the employer? If so, is it generally more sensible to be dismissed as opposed to resigning citing constructive dismissal? Thanks.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 1 year ago.
16 years. Thanks very much.
Expert:  Ben Jones replied 1 year ago.
Thank you. The appropriate test for a "continuing act" is whether the employer is responsible for an "an ongoing situation or a continuing state of affairs" in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents. It is possible for the tribunal to decide that some acts should be grouped into a continuing act, while others remain unconnected, however the distinction between a continuing act and a one-off act that has continuing consequences is sometimes difficult to draw. You certainly do have an argument that these should be treated as connected and continuing acts of discrimination, however only a tribunal can decide if that is the case. In terms of how to take this forward, it is usually better to be dismissed rather than resign and that is down to the burden of proof when claiming afterwards. In constructive dismissal it is for you to prove you have a valid claim, in a dismissal case it is for the employer to prove that the dismissal was fair. So if it is likely that there will be a dismissal, it would indeed be more sensible to let that happen rather than resigning and claiming constructive dismissal. This is your basic legal position. I have more detailed advice for you in terms of what happens before you are allowed to issue a claim in tribunal, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
That’s great. Thank you. I also said to them at the time of the grievance that the issue was poorly handled and required copies of all papers in relation to this and the appeal. These have been provided but some documents have been omitted. The reasons given are the documents concerned contain information concerning several persons and “not all persons have given consent which could cause harm/distress”. I thought if information concerned myself I was entitled to see this under DPA?I also requested a copy of my employment contract, 40 days has elapsed and that has not been sent to me. When I initially asked, I was told “you can access it on the staff computer”. I can’t though, as I’m off sick hence my reason for asking. Any advice on how to also factor these issues in would be appreciated. Thanks again.
Expert:  Ben Jones replied 1 year ago.
Many thanks. What you may find useful is the relatively new feature in the employment tribunal’s claims process, which is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits. In terms of documents, you are entitled to see information about you but they can withhold information about others. In these circumstances it may be best to redact or blank out the details about others and still provide the details about you. As to the contract, try to see if they can send it by post or email.
Customer: replied 1 year ago.
So the attached ACAS form presumably should be filled out after dismissal? Is there a straightforward way of working out what amount of settlement an individual is entitled to as I assume it takes into account length of service, ill health/if on sick leave, if discrimination may be a factor, if any annual leave is owing etc?I think the documents in question are possibly witness statements as they are the only few omitted in the section containing those. I wasn’t sure if there was some section of DPA that applied whereby I could write back stating as the contents pertained to myself I could still peruse them?I requested the contract via either email or post over 40 days ago but they’ve failed to send as apparently the pages on the staff computer comprise so much. I don’t recall ever signing or being given anything so I was unsure what to do here in terms of checking breaches of it and if that was an ICO matter? Thanks.
Expert:  Ben Jones replied 1 year ago.
well you are able t claim for discrimination before you are dismissed, but if you are likely to be dismissed then you could claim at the same time. There are various factors considered in an unfair dismissal claim, you can use this: http://www.winstonsolicitors.co.uk/unfair_dismissal_calculator.html If a claim for discrimination is made, the usual remedy would be to award compensation for injury to feelings. This is calculated by considering the level of discrimination that the claimant has been subjected to. The seriousness of the discriminatory behaviour is assigned to one of three ‘bands’ known as Vento bands, named after a court case with that name. The current compensation levels are as follows:· Lower band - for less serious cases, for example an isolated incident or event (£600 - £6,000)· Middle band - for serious cases which are not serious enough to fall within the highest band (£6,000 - £18,000)· Top band - for the most serious cases, for example if there has been a lengthy and calculated campaign of harassment/discrimination (£18,000 - £30,000) the contract issue is unlikely to be dealt with by the ICO, they will probably not look into an isolated issue like this, it is a grievance matter really

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