Tag: Employment Tribunals

An Employment Solicitors Guide To Constructive Dismissal

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Constructive dismissal is a frequently misunderstood term – but if your employer behaves in a way that means that you feel you have to leave your job, you might be able to claim constructive dismissal.

Constructive dismissal takes place when an employee terminates their employment because the employer’s conduct is such as to make it unbearable for the employee to continue in their employment. This behaviour must be so serious that it can be classed as a breach of contract i.e. behaviour that gives the employee the belief that their employment contract has been terminated.

Constructive dismissal need not relate to one particular event, it can also apply to a string of events. Constructive dismissal claims relate to the employer’s breach of express of implied terms of your employment contract. This could include the advertisement for your job, something laid out in the staff handbook or the terms and conditions written in your contract. It can include breach of implied terms, like an employer’s duty of care towards its employees or duty to act reasonably.

You could claim constructive dismissal if your employer has reduced your wages, amended your job description or your hours and place of work, or ignored a request to improve bad working conditions.

Examples of a severe breach of an implied term amounting to constructive dismissal would include; an employer making it impossible for you to do your job effectively, not giving you the support required to carry out your work without interference or harassment from colleagues, or wrongly accusing you of theft with no evidence to support the accusation.

In order to claim constructive dismissal you must have had one year’s continuous employment. If you have less than one year’s continuous employment, you could still claim constructive dismissal if you are able establish that your employment was terminated for an automatically unfair reason.

You should raise a formal grievance if you are unhappy with how your employer is treating you. Clarify exactly what is making you unhappy. Following the ACAS Code of Practice, your employer should then arrange a formal meeting, without unreasonable delay, to discuss the grievance. Being helpful and reasonable during negotiations with your employer might help resolve the problem. Employment Tribunals are frequently more sympathetic toward employees who have attempted to settle or mediate problems before going to a tribunal.

Experienced employment solicitors appreciate that those employees who find themselves in a situation where they are likely to make a claim for constructive dismissal, are often suffering from anxiety, stress or even depression. You should seek medical advice if you think you may be suffering from any of these conditions andbe sure to let your employer know the reasons for your absence.

Time limits for an Employment Tribunal

You must leave within a reasonable time of the breach – do not delay. You then have a strict 3 month period from the date you left to file an employment tribunal claim. An Employment Tribunal may interpret your delay as having accepted the changes in your contract – the main point about constructive dismissal is that the situation has become such that it is simply impossible to continue your employment.

Although feeling that you have no alternative than to resign, and subsequently doing so, may constitute constructive dismissal you should take legal advice on your individual situation before handing in your notice unless your conditions are entirely intolerable, in which case seek legal advice immediately thereafter. Employment law is complex and it is always important to get specific legal advice from an experienced employment solicitor on employment law problems and constructive dismissal cases in particular.

Working method of Employment Tribunal

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In this period of employment crisis many employers removes the employees from job without any reason by creating some reasons for removing them from job. Employment tribunals are how disputes between employers and workers take place after other attempts to resolve a conflict have failed. The courts are usually a last resort to resolve issues between employers and workers. It is important to know how courts work and the entire procedures.

Employment Tribunal process in general is given below:

Employment Tribunals are made up of a committee of three, a judge and two lay complete with extensive experience in labor disputes. There is no charge for the use of a court, but it will still be the cost of attorneys’ fees of each party. The cases have not been claimed against more than three months from the date of the incident happened will not take into consideration unless there is any kind of unforeseen circumstances. Once a decision has been made is legally binding and both parties must respect this decision.

There are a variety of different topics that can be taken before the Labor Court. The most common complaints are as follows:

Redundancy Equality issues Discrimination Dismissal without prior notice or reason Breach of contract Disciplinary procedures Maternity or paternity

Alternative Dispute Resolution

If a dispute is always a mutual interest in ensuring that you are trying to resolve the situation before the court. There are many types of alternative dispute resolution that can spread very fast. It is always helpful to consider the following methods before resorting to an employment tribunal:

1.ACAS Advisory Conciliation and Arbitration is the main methods of pre-complaint conciliation. They will try to solve the problems between the employer and employee before going to court. They will give advice and suggests possible methods to solve the issue by discussion or any other means without going to court. If the matter was settled through ACAS, then both employer and employee must sign a legally binding agreement for avoiding further problems in future. If the agreement is violated by both sides, then the other party has the right to sue for breach of contract. This agreement is good option to avoid minor issues after the settlement. 2.Other effective method of dispute resolution is a compromise, and this is a legally binding solution, to provide compensation or a reference to the dissatisfied party. Compensation will be usually made by the withdrawal of the claim by one party. You must inform Employment Tribunal in writing, and the second party involved in the dispute, if you accept a compromise. Here one party has to accept the terms of other party and have to come in mutual understanding to avoid future problems. This will work out in few cases only because it is not that much easy that one party will agree with the terms and conditions of the other easily. Issues relating to employment tribunal must always be resolved with the help of a lawyer specializing in employment.

Employment Tribunals hope you will appreciate the practical advice within this guide on employment tribunal rules. We believe that the specialist experience we provide allows any claimant or respondent to have the benefit of effective representation throughout the employment tribunal procedure and rules.

Abbey Santander Illustrates Unfair Dismissal Remedy (reinstatement)

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Reinstatement, being the re-employment of the employee back into the role he was unfairly dismissed from (as though the dismissal had never occurred), is one possible remedy in the UK for unfair dismissal. In the high-profile case Chagger v Abbey National plc & Hopkins (2006), the Employment Tribunal found that Mr Chagger had been unfairly dismissed, and that both Santander Abbey National (the Spanish-owned UK bank due to be re-branded as Santander, and being part of the Banco Santander Group) and Mr Hopkins had discriminated against Mr Chagger on the grounds of race in respect of his dismissal. The Employment Tribunal took the rare step of ordering Abbey Santander to reinstate Mr Chagger in order to remedy its wrongdoing. Santander Abbey National, however, refused to comply with the Employment Tribunal’s reinstatement order. Following Abbey Santander’s refusal and failure to comply with the reinstatement order, the Employment Tribunal subsequently ordered Abbey Santander to pay Mr Chagger the record breaking 2.8 million compensation for his loss on the basis that he had not been reinstated. Santander Abbey National had terminated Balbinder Chagger’s employment in 2006, giving redundancy as the reason. He was employed as a Trading Risk Controller, earned about 100,000 per year, reported into Nigel Hopkins and was of Indian origin.

UK law views reinstatement of the unfairly dismissed employee as the primary remedy for unfair dismissal; reinstatement of the employee permits him to continue to enjoy the economic benefits of the role in the future and also restores the mental satisfaction that he enjoyed from his role. If reinstatement of the employee is not practicable, UK law then usually views reengagement as the next best remedy. Reengagement is re-employment of the employee into a different role to the one he was unfairly dismissed from (on terms and conditions as close as is reasonably practicable to those he was unfairly dismissed from).

After an Employment Tribunal makes a finding of unfair dismissal, it must ask the unfairly dismissed employee whether or not he wishes to be reinstated or reengaged. If the employee wishes to be reinstated or reengaged, then the Employment Tribunal has complete discretion as to whether or not to issue a reinstatement order or reengagement order. The Employment Tribunal will consider whether it is practicable for the unfairly dismissed employee to return to work for the employer and, where the unfairly dismissed employee was partly to blame for the dismissal, whether or not it would be just and equitable to issue such a reinstatement order or reengagement order.

Although they are the primary remedies, Employment Tribunals rarely ever order reinstatement or reengagement though. That’s because the reality of the process of litigation is that its vexatious nature often leaves the relationship between the employer and the unfairly dismissed employee beyond repair such that it is no longer possible for them to work together anymore; only in rare cases do Employment Tribunals decide that the relationship remains workable.

When an Employment Tribunal orders reinstatement or reengagement, then it is open for the employer to refuse to re-employ the unfairly dismissed employee. Unless the employer satisfies the Employment Tribunal that it was not practicable to comply with the reinstatement order or reengagement order, then the employer’s refusal to comply with the Tribunal’s wishes will give rise to increased compensation for the unfairly dismissed employee. If the Tribunal is dissatisfied with the employer’s reasons for refusing to comply with its wishes, then the employer will have failed to comply with what the law views as the best solution to rectify the wrong committed; then the Employment Tribunal will proceed to consider and award compensation as the next best remedy to address the employer’s wrongdoing.

Requesting reinstatement and/or reengagement may prove to be tactically useful for an unfairly dismissed employee because the employer’s failure to comply entitles him to be compensated in full for all his loss of earnings from the date of the unfair dismissal to the date of the reinstatement/reengagement order; the statutory limit (or cap) on the compensation amount does not apply. So, if the unfairly dismissed employee’s losses to the date of the hearing exceed the statutory limit, then reinstatement/reengagement should be seriously considered. Furthermore, employers generally dislike re-employing an unfairly dismissed employee so much that a credible application for re-employment could lead to higher offers of settlement from the employer. If the employer complies with the order of reinstatement/reengagement, then the employee will be expected to comply too.

The Chagger case did not end at the Employment Tribunal stage, however. The case was subsequently escalated to the Employment Appeal Tribunal (EAT), and recently had escalated to the second highest court in UK, the Court of Appeal. The Court of Appeal’s website showed the case was heard on 7 and 8 July 2009. The Court of Appeal’s records of the case were not available at the time of writing this article. However, the King’s Bench Walk set of barristers’ chambers reported (through their website) that the hearing was limited to the issue of compensation only (not race discrimination also). That suggests that the wrong of race discrimination committed by Santander Abbey National and Mr Hopkins seemed to have been finalised by the EAT, which upheld the original Employment Tribunal’s judgement that Mr Hopkins and Abbey Santander had discriminated against Mr Chagger on the grounds of race in his dismissal.

Employment Grievance Procedure Illustrated With Chagger V Emilio Botin Abbey Banco Santander Group

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An employment grievance is an issue, complaint or concern over employment rights that the employee brings to the attention of his employer. The grievance may be about such things as employment terms and conditions, health and safety, equal opportunities, organisational change, work relations, working environment, bullying and harassment, and new working practices.

The UK employment grievance procedure is illustrated here with the high-profile Court of Appeal employment race discrimination case Chagger v Abbey National plc & Hopkins (2009), in which an Employment Tribunal made findings of breach of contract, unfair dismissal and race discrimination, and ordered Emilio Botin Abbey Grupo Santander share price to pay Mr Chagger the record-breaking financial compensation of 2.8 million to cover his loss (Emilio Botin Abbey Santander banking group had refused to reinstate Mr Chagger as ordered by the Employment Tribunal).

Abbey Banco Santander share (the UK high-street bank being re-branded as Santander shares price, and being part of the international Banco Santander Central Hispano Group) dismissed Balbinder Chagger from his Trading Risk Controller position in 2006. Abbey Santander banking claimed the dismissal was the result of a fairly conducted redundancy exercise. Mr Chagger, on the other hand, alleged that his removal was motivated by unfairness and race discrimination. He was of Indian origin, earned about 100,000 per annum and reported into Nigel Hopkins.

There are many benefits in resolving a grievance through informal channels and, wherever possible, the employee should try to achieve this first. Failing that, a formal grievance procedure may be pursued. The procedure is meant to process the grievance with fairness, consistency and speed.

The employee initiates the formal grievance procedure by informing the employer in writing of the grounds of his grievance. The procedure then requires the employer to invite the aggrieved employee to a grievance-hearing meeting to hear the grievance. The grievance hearing must be held within a reasonable time from the date the grievance was raised, usually within 2 weeks. The employee usually has the right to be accompanied to the hearing. At the grievance hearing, the employee explains his grievance and how he would like to see it resolved. The employer is ultimately responsible for deciding how to resolve the grievance. The grievance procedure gives the employer an opportunity to handle the grievance and to bring it to a satisfactory conclusion. Once the employer has decided how to resolve the grievance, the employer must notify the employee of the decision in writing, explaining that the decision may be appealed.

If the employee is dissatisfied with the employer’s handling of the grievance and wishes to pursue the grievance further formally, then he may appeal against the employer’s decision. The employee appeals by informing the employer in writing of the grounds of his appeal. The employee normally needs to raise his appeal within 5 days from the grievance outcome. The employer must then invite the employee to an appeal-hearing meeting to hear the appeal. The appeal hearing must be held with a reasonable time from the date the appeal was raised, usually within 2 weeks. The employee usually has the right to be accompanied to the hearing. At the appeal hearing, the employee explains his appeal and how he would like to see it resolved. The employer is ultimately responsible for deciding how to resolve the appeal. The grievance procedure gives the employer another opportunity to handle the grievance and to bring it to a satisfactory conclusion. Once the employer has decided how to resolve the appeal, the employer must notify the employee of the decision in writing, explaining that the decision is final and may not be appealed, and that the grievance procedure has been completed and ended.

If at the end of the employer’s handling of the grievance the employee remains dissatisfied with the outcome, then the employee may escalate the his issues to an Employment Tribunal for an independent adjudication. The system of Employment Tribunal is the final channel available to an employee to determine whether or not the employer has acted appropriately. Employment Tribunals will hear disputes regarding unfair dismissal, equal opportunities, discrimination and redundancy payments.

In 2006, Mr Chagger escalated his issues to the Employment Tribunal, alleging unfair dismissal, race discrimination and breach of contract. The Employment Tribunal ruled that Mr Chagger had in fact suffered unfairness and race discrimination from Santander Abbey and from Mr Hopkins, as well as suffering breach of contract from Abbey Santander share.

The Employment Tribunal noted that Mr Chagger had tried to resolve the issues surrounding his dismissal through Abbey Santander’s grievance and appeals procedures. However, the Tribunal found that there was a culture at Santander Abbey of tending to deny and refuse Mr Chagger’s issues, and the issues were simply thrown out of hand by every Abbey Santander officer who had been assigned to decide on them. The Tribunal concluded that Emilio Botin Abbey Santander price had failed to give serious consideration to allegations of racial discrimination and to investigate them promptly.

In 2008, both Abbey Santander banking and Nigel Hopkins appealed against the Employment Tribunal’s ruling of racial discrimination. The Employment Appeal Tribunal (EAT) rejected their appeal. Thus, the original Employment Tribunal’s ruling that Abbey Grupo Santander share and Nigel Hopkins had discriminated against Mr Chagger had been upheld by the EAT. At the same time, Abbey Banco Santander and Mr Hopkins had also appealed against the record 2.8 million compensation awarded. The EAT accepted this appeal and ordered the financial compensation to be sent back to the original Employment Tribunal for reconsideration on the basis, amongst others, that the Employment Tribunal should have considered whether to reduce the compensation to take account of the chance that Mr Chagger could have been dismissed in any event.

In 2009, Mr Chagger appealed to the UK Court of Appeal against the EAT’s rulings regarding the compensation. The Court of Appeal partly upheld Mr Chagger’s appeal, but upheld the EAT’s ruling that the compensation be sent back to the original Employment Tribunal for reconsideration on the basis that the Employment Tribunal should have considered whether to reduce the compensation to take account of the chance that Mr Chagger could have been dismissed in any event.

Emilio Botin Abbey Santander and Nigel Hopkins did not appeal against the EAT’s ruling on race discrimination; they appear to have conceded they racially discriminated against Mr Chagger.

Grievance Letter And Court Structure Illustrated By Emilio Botin Grupo Santander Banking

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UK employment disputes grievances and court structure is illustrated by the high-profile Chagger v Abbey National plc & Hopkins (2006) legal case, where the Tribunal made a finding of racial discrimination which led to the record 2.8 million compensation award. Abbey Santander banking group (the UK retail bank due to be re-branded as Santander price, and being part of the gigantic Emilio Botin Banco Santander Central Hispano Group, BSCH) terminated Balbinder Chagger’s employment in 2006, asserting compulsory redundancy as the reason. Mr Chagger, on the other hand, believed the true reason behind his dismissal was racial discrimination. Mr Chagger was of Indian origin and worked as a Trading Risk Controller for Santander 2009. He earned about 100,000 per annum and reported into Nigel Hopkins.

An employee who has suffered employment related unfairness and/or discrimination could decide to make an appeal. The initial place of appeal would be to the employer, in the form of a formal grievance. The employee lodges a formal grievance letter with the employer, and the employer is responsible for processing the grievance and deciding the outcome. Thus, the employer is given the first the opportunity to handle the employment dispute and to close it satisfactorily. Mr Chagger’s grievances and issues, however, were simply dismissed out of hand by Emilio Botin Abbey Santander share price.

If the employee and the employer are unable to resolve their employment dispute by themselves, then the employee may appeal to an Employment Tribunal for an objective resolution. UK Employment Tribunals will hear matters about redundancy payments, unfair dismissal and discrimination. Mr Chagger took his matter to the Employment Tribunal by initiating legal action against both Santander Abbey and Mr Hopkins, on the grounds of unfair dismissal and racial discrimination. The Employment Tribunal considered the evidence and ruled that Mr Chagger had in fact been both dismissed unfairly and racially discriminated against by both Abbey Santander and Mr Hopkins. In order to remedy the wrong of race discrimination Santander Abbey had committed, the Employment Tribunal ordered the company to reinstate Mr Chagger. However, Santander Abbey refused to comply with the Employment Tribunal’s reinstatement order. The Employment Tribunal then ordered Abbey Santander to pay Mr Chagger 2.8 million compensation for his loss, as an alternative to reinstatement.

The party that is dissatisfied with the Employment Tribunal’s ruling may appeal to the next higher-level court, being the Employment Appeal Tribunal (EAT). The EAT will look into appeals against rulings made by the Employment Tribunals. The appeals must only be about points of law (i.e., an appeal must only be about mistakes in legal reasoning by the Employment Tribunal). The EAT will not look into matters about facts of the case. In 2008, Santander Abbey and Mr Hopkins appealed to the EAT against the Employment Tribunal’s ruling of racial discrimination and against the record-breaking 2.8 million compensation awarded. The EAT considered the appeals. It upheld the original Employment Tribunal’s ruling that Santander Abbey and Mr Hopkins had racially discriminated against Mr Chagger in respect of his dismissal. However, it accepted Santander Abbey’s appeal concerning the 2.8 million compensation award and decided to send back the compensation amount to the original Employment Tribunal for reconsideration.

The party that is dissatisfied with the ruling of the EAT may make an appeal to the next higher-level court, the Court of Appeal (the second highest court in the land). The Court of Appeal will look into appeals against rulings made by the EAT. As before, the appeals must only be about points of law (i.e., an appeal must only be about mistakes in legal reasoning by the EAT). The Court of Appeal will not look into matters about facts of the case. In 2009, the Chagger v Santander Abbey case was appealed to the Court of Appeal. The Court of Appeal’s List of Hearings showed that the case was heard on 7 and 8 July 2009. The Court of Appeal’s records concerning the outcome of the hearing were not available at the time of writing this article. The 11KBW set of barristers’ chambers (who represented Santander Abbey and Mr Hopkins), had reported that the hearing was to be only about quantum (i.e., compensation) and not liability also (i.e., not racial discrimination also). That would appear to suggest that the wrong of race discrimination committed by Abbey Santander and Mr Hopkins was finalised by the EAT (it upheld the original Employment Tribunal’s finding that Mr Hopkins and Santander Abbey had racially discriminated against Mr Chagger), and that Mr Chagger had appealed against the EAT’s ruling to send back the compensation amount back to the Employment Tribunal stage for reconsideration.

The party that is dissatisfied with the ruling of the Court of Appeal may appeal to the next higher-level court, the House of Lords. Appeals to the House of Lords require the Court of Appeal’s approval. Furthermore, the Court of Appeal must require the House of Lords to decide upon a question of general public importance. As previously, appeals to the House of Lords must only concern points of law and not be about facts of the case. The House of Lords is the highest court in the land and the final stage of appeal for most legal cases in the UK. Occasionally, cases may be approved for appeal to the European Court of Justice, which has jurisdiction on matters of European Community law.