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About Uncertain

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  1. A good example here is O J Simpson (OK, USA but same principles apply). He was found not guilty of murder but the deceased's family still managed to sue him later in a civil court for damages. Rightly or wrongly an employer only need a reasonable belief to be justified in dismissing. Even if they are later proved to be wrong this doesn't, in itself, mean the belief wasn't reasonable at the time. However unfair it may be in this case, a finding of not guilty simply means the case wasn't proved beyond a reasonable doubt. This is often regarded as 95% certain. The court could have taken the view you were anything from 0 to 94% likely to have done it but would be required to find you not guilty. Sorry, depending on the circumstances, this stinks and you may have every right to feel aggrieved.
  2. Your statement........ Notwithstanding that you had no contract of employment, so cannot have breached any contract The OP DOES have a contract by virtue of the fact he worked and got paid. Just because it is not written on a piece of paper titled CONTRACT doesn't mean there isn't one.
  3. When I worked for a large employer I had several people I could call on who worked on this basis. According to our HR department the "employee" would have to do far more than turn down a particular offer of work to have repudiated or frustrated the contract. They spoke in terms of "generally" and "reasonable" which, as we know, are designed to keep lawyers busy! We were advised that it very much worked both ways. The employee was not guaranteed work at a particular time (but should be offered a "reasonable" amount of what was available) and equally was not obliged to accept any particular offer (but should generally be able to accept most). Anything else would surely be so one sided as to be inequitable?
  4. Sorry but much of this is wrong! The OP does have a contract of employment by virtue of the fact that he worked and the firm paid him. What he may not have is a written statement of the terms of his employment. This is a technical breach on the part of the firm and MAY attract a small penalty if he wins an ET case brought for some other reason. With very few exceptions in English law a contract does not have to be in writing to be binding. Obviously it is easier to prove what has been agreed if it is.......... So, what it comes down to is did he / should he have reasonable known that the firm did not allow staff to do private work (if indeed that was their general policy and not one they are making up as an excuse in this case only). If it was well know amongst the staff that this was not allowed then he has a problem. We then come on to whether or not this was GROSS misconduct warranting instant dismissal without notice or a lesser matter.
  5. It will do because you don't have a legal right to take a solicitor to an internal disciplinary hearing or an appeal. Very few companies would let you do so. Your legal right is to a work colleague of your choice or an accredited trade union representative. That said your legal expenses insurance will no doubt provide telephone advice so it would be worth contacting them and talking it through. Should the firm dismiss you (and I would think this most unlikely) your legal insurance would cover taking them to an employment tribunal and representing you there. I would prepare a clear written statement of what happened, talk it through with the telephone advice, and then present this at the disciplinary hearing with your apology. Keep careful written notes of everything that has happened just in case they are needed later.
  6. Although I share your concerns both a child (i.e 17 year old) and a vulnerable adult can drive cars and be members of the AA!
  7. If you manage to agree a compromise agreement (which I would have thought under these circumstances should be possible) it is normal to include an agreed reference as part of the deal. This would at least give you some certainty about what would be said to prospective employers.
  8. The procedure for enforcing ET awards has just been improved giving easy low cost access to the High Court rather than having to rely on County Court bailiffs (in England and Wales). I appreciate Scotland has a somewhat different legal system but I assume there will be a similar procedure. The ET staff should be able to give you procedural information (although they can't offer legal advice).
  9. This is a difficult situation (I've been in a similar one myself). You need to try and have a clear idea in your own mind of what you would like to happen. Do you think one of these different roles internally would be a long term answer? The potential downside of forcing the employer's hand into letting you try is, if it doesn't work out, they may have discharged their obligation regarding reasonable adjustment. The fact that a DDA situation has been accepted will make the employer very cautious. Some large organisations may just do noting at all if you let them. Presumably your company sick pay has run out? OK, thanks to the recent court ruling, they have to pay you for 28 days holiday per year but that is all you are now costing them. They may take the view that this is the safest path and let it run. Would you prefer some kind of pay off? Would you qualify for retirement on health grounds (pension - firm's insurance etc). Otherwise the only option is a compromise agreement where the firm gives you some money in exchange for you giving up any possible claims.
  10. I've read this and your earlier post. I wonder if you are getting too bogged down the the legality or otherwise of your employer's "monitoring"? If this were a criminal matter then this may be more relevant. However, in an employment dispute the employer only needs to hold a reasonable belief that the behaviour took place. Appeals have sadly confirmed that if the belief was reasonable (although it is later shown to be wrong) then a dismissal that follows from the reasonable belief can still be fair. Obviously if your employers have breached the DPA or similar you are quite entitled to report them to the proper authorities. If they took action against you for doing so then you are protected. However, as I understand it, even improperly obtained information can help with their reasonable belief. For similar reasons employee's have been able to use covert tape recordings as evidence at ETs. You may of course be able to "horse trade" i.e. drop this disciplinary action or I'll shop you but that is about it!
  11. I would have thought even this is questionable. Simply from a phone call the surgery have no idea if it is even the employer calling. Imagine this scenario...... Doctor issues sick note but patient decides to go to work as they can't afford to lose pay. Boss thinks employee looks ill or is unproductive. "Grape vine" suggests employee has been to the doctor. Boss calls doctor on pretext to checking validity of sick note but really to find out if one has been issued? If the surgery reply is this not a breach of confidence?
  12. Under virtually all circumstances an employer can seek repayment of an accidental overpayment. It is never best to ignore these things. If she felt there were good reasons why she should not pay it back then she should have contacted them and said so. This may at least have led to compromise. She is of course entitled to reasonable proof of the debt and can dispute any errors.
  13. Depending on your contract I suspect they probably can. Presumably you were not paid full sick pay for two years? If you were then this is one of the most generous provisions I've ever met. Even most public sector long established employees only get something like six months full pay and six months half pay. Most private sector jobs offer far less. Also, somewhere in the small print is usually says that company sick pay is at the firm's discretion. If not then certainly anything beyond the contractual entitlement will be. Equally it is not uncommon to have to be back at work for a certain period before your sick pay entitlement build up again. Even then there is an argument that you have temporally reduced your hours to part time. I would be amazed if your sick pay entitlement didn't reduce in proportion. One point, assuming you didn't get full pay for the whole two years, you did of course continue to accrue paid holiday when off sick. One option may be to take this to offset the reduced pay? It has to be said that most firms would have taken steps to dismiss on capability grounds long before now. It may be you illness counts as a disability (in the legal sense) in which case you have some additional protection. However, even then, they are only obliged to make "reasonable adjustments". If these are not enough to enable you to return then they would almost certainly be able to consider either retirement on health grounds or a capability dismissal. Sorry.
  14. The problem here, as you probably know, you have very little employment protection in the first year. Apart from discrimination, trade union membership and one or two other things the firm can dispense with your services for any reason they like. Unless it is gross misconduct you are entitled to a weeks notice (or more depending on your contract) and either way you will have to be paid for any untaken holiday. There are an number of factors here that would argue against gross misconduct but apart from getting paid for this there is probably little you can do.
  15. Just to update this thread..... I have spoken to the CAB at my doctor's suggestion. Although very pleasant they were not really able to tell me anything that couldn't be found out with Google. They did say that they are NOT able to provide representation if this goes to a tribunal or even suggest anybody that can. This did surprise me. Any suggestions or comments would be appreciated. Thanks.
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