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| Moderated by: Saida.M, safetyblitz, Raven, Miss Brighter Days, LadyDay, Kunjufu, Kibibi, Happiness, Dillinger, Breadfruit, Backatya |
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EF MAX
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Posted: Wednesday June 21st, 2006 09:01 |
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Any Legal Minds here..?
The scenario:
- You are accused of something that you did not do. This is by a large local but public corporation.
- The case goes to court [Crown Court]
- You win your case
In the process and along the way:
- You have to give up your professional job [constructive dismissal]
- Your professional integrity is challenged and tarnished
- You endure 30 months of stress and this results in some [but small] medical attention
- You lose pay over the above investigation and court appearances due to the need to take legal advice
You are now rightly angry and frustrated and want the following compensation:
· Your professional name put right and any defamation publicly corrected
· Your loss of income
· Your legal costs
· Your emotional and psychological suffering from the stress the accusation and the court case has generated
What is the NEXT best legal step to secure the above, given that the Crown Court case is in the defendant’s positive interest..
TIA.. this is real by the way..
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Incognito
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Posted: Wednesday June 21st, 2006 09:08 |
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Hey EF MAX, guess you can't know it all eh!
http://www.hometonight.co.uk/QUALIFICATIONS.htm
I'd say get one of them no win no fee lawyers on the case.
Last edited on Wednesday June 21st, 2006 09:09 by Incognito
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johnm
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Posted: Wednesday June 21st, 2006 21:40 |
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What you say isn't very clear. You say:
- You are accused of something that you did not do. This is by a large local but public corporation.
- The case goes to court [Crown Court]
- You win your case
but at the end you say "What is the NEXT best legal step to secure the above, given that the Crown Court case is in the defendant’s positive interest."
What do you mean "the Crown Court case is in the defendant's positive interest?" Do you just mean the defendant has been found not guilty?
In the process and along the way:
"You have to give up your professional job [constructive dismissal]"
- Dismissal has to be for a fair reason. Being accused of a crime the defendant was found innocent of doesn't sound like a fair reason to me although you need to get an employment lawyer to check this! You can get free advice on this sort of thing from the Free Representation Unit, which has some very good junior barristers working for nothing to gain experience.
"You lose pay over the above investigation and court appearances due to the need to take legal advice"
- People found innocent have their legal costs paid for them by the CPS, I think.
You are now rightly angry and frustrated and want the following compensation:
· Your professional name put right and any defamation publicly corrected
- I'm pretty sure defamation only relates to published statements.
"You endure 30 months of stress and this results in some [but small] medical attention"
"Your emotional and psychological suffering from the stress the accusation and the court case has generated"
- This would be relevant to the damages he receives but he would need to establish a cause of action first.
TIA.. this is real by the way..
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MarcusGarveyLives
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Posted: Thursday June 22nd, 2006 21:08 |
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Defendants in English criminal cases do not "win" their cases nor are there any findings in the "defendant’s positive interest". The defendant is either found guilty or not guilty or, in some circumstances, the jury is unable to agree upon a verdict.
This therefore suggests some basic lack of understanding of the legal system.
The lack of actual specific facts and preponderance of vague phrases is also instructive. Presumably, the individual concerned took legal advice during the criminal proceedings referred to, and it is somewhat strange that legal advice is now being sought from the users of any internet messageboard, rather than the source of the previous legal advice, or a legal adviser who has been given the actual facts rather than a series of vague statements.
If someone has evidence of wrongful arrest, false imprisonment and malicious prosecution, they should sue. Constructive dismissal is described briefly here (Please click). The vague statements posted above do not form the basis of any claim. The person who knows the actual facts should present them to an employment lawyer who can determine whether there is any basis for a claim. This makes more sense than asking the users of an internet messageboard to try and guess what happened and then to provide legal advice on that basis.
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EF MAX
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Posted: Friday June 23rd, 2006 05:54 |
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To make things clearer:
The case was brought by a local authority on a over payment of Housing Benefit. The charge kept changing until they thought that they had something.
The defendant pleaded, and was not guilty, and was found not guilty, but the defendant, defended themselves throughout quite successfully including the crown court trial which they had asked for at the magistrates.
The defendant worked for another local authority and they have a policy that any court cases, be them civil or criminal while in their employment will lead to a disciplinary and or a dismissal.
The accusing local authority used what ever methods they could to both get information about the defendant [which they were legally entitled to do] from the defendants work place and then hounded him at work by constant visits and interruptions to his work timetable.
The defendants employer’s then started to make the defendant’s work load unreasonable and then his working conditions unreasonable and he then handed in his notice and left.
During the 30 month investigation/trial, the defendant suffered much emotional distress as he knew that his employers could dismiss him, regardless to whether he was guilt or not as this is in their code of conduct to employers, and there was much psychological distress which meant having to involve the Occupational Health Team at his workplace.
Now the case is over, and it is clear to the defendant that there never really was a case in the first place and the accusing local authority was just on a mission to score cheap brownie points, he feels that he should be compensated.
On top of this, now the defendant is looking for new employment and his last employers, when given a written request for references are either not responding [which is illegal as so is giving a bad reference] or responding by telephone and giving a non recorded negative reference, yet this person’s teaching ability has always scored a 2 on the Ofsted Inspection scale for classroom teaching.. [ A 2 is seriously high on the old 7 point scale and is still very high on the new 4 point scale] And he has been inspected or observed at least 13 times in the last 3 years and has nothing negative on his personel file for this employment.
So he is pi$$ed off and wants to take the next step but as he had no legal advice and worked on his innocence being enough to get this far, now needs to know where to go to next..
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Kunjufu
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Posted: Friday June 23rd, 2006 06:32 |
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EF MAX wrote:
To make things clearer:
The case was brought by a local authority on a over payment of Housing Benefit. The charge kept changing until they thought that they had something.
The defendant pleaded, and was not guilty, and was found not guilty, but the defendant, defended themselves throughout quite successfully including the crown court trial which they had asked for at the magistrates.
The defendant worked for another local authority and they have a policy that any court cases, be them civil or criminal while in their employment will lead to a disciplinary and or a dismissal.
The accusing local authority used what ever methods they could to both get information about the defendant [which they were legally entitled to do] from the defendants work place and then hounded him at work by constant visits and interruptions to his work timetable.
The defendants employer’s then started to make the defendant’s work load unreasonable and then his working conditions unreasonable and he then handed in his notice and left.
During the 30 month investigation/trial, the defendant suffered much emotional distress as he knew that his employers could dismiss him, regardless to whether he was guilt or not as this is in their code of conduct to employers, and there was much psychological distress which meant having to involve the Occupational Health Team at his workplace.
Now the case is over, and it is clear to the defendant that there never really was a case in the first place and the accusing local authority was just on a mission to score cheap brownie points, he feels that he should be compensated.
On top of this, now the defendant is looking for new employment and his last employers, when given a written request for references are either not responding [which is illegal as so is giving a bad reference] or responding by telephone and giving a non recorded negative reference, yet this person’s teaching ability has always scored a 2 on the Ofsted Inspection scale for classroom teaching.. [ A 2 is seriously high on the old 7 point scale and is still very high on the new 4 point scale] And he has been inspected or observed at least 13 times in the last 3 years and has nothing negative on his personel file for this employment.
So he is pi$$ed off and wants to take the next step but as he had no legal advice and worked on his innocence being enough to get this far, now needs to know where to go to next..
If the above is correct then, for me this is a case of possible Harassment, Discrimination and constructive dismissal . he/she need to find a law centre that deals with employment law..because they can advise them more effectively...try the yellow pages or the internet.. I take it this person wasn't in a union (BIG mistake).
I hope: he or she kept copious diaried accounts of their treatment, and has photocopied evidence to match.. can prove that thier treatment was unusual or different to their colleague. better still they can get witnesses willing to testify to the behaviour of his managers/authority.
plus I would also urge the person to get a copy of the Local authorities staff handbook, and examine where he or she believes the council did not follow their own policies and procedures..that might at least get them an opening to take this to an Industrial tribunial..in fact they might want to lodge a case now pending he/she finding someone willing to represent them on this.. I do not advise the they represent themselves, because whilst they might be effective in arguing their case..they will not know the law and where it might be applied in their case..
To prove: harrassment, contructive dismissal and discrimination..which it appears to me is clearly event in this story.. You need EVIDENCE, even with that it will be difficult, he/she will be far more effective with an organisation behind them, otherwise they will get ignored..I must say without these things in place they will stand no chance sorry..
Good luck!!
Ps: On the reference bit, Employers cannot write a BAD reference without evidence of a disciplinary having taken place.. that is against the law... They can however refuse to write a reference or write a bland one, that is not unlawful..
My personal advice is that your friend should join an agency or something so that he/she does not have to refer to them as their last empoyers for reference purposes..
Last edited on Friday June 23rd, 2006 06:38 by Kunjufu
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EF MAX
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Posted: Friday June 23rd, 2006 15:14 |
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Yep, you are right,, NO UNION.. I think they realise that now with hindsight.
Also, advice about the agency,, good advice and it has already been put into place..
Will try and help them find a good employment lawer as this could get messy..
There is some evidence around but most of their ex teacher/tutor mates are never willing to put they neck on the line.. weak minded or just scared not too sure which..
I have suggested that under clause 7 in the 1998 Data Protection Act that they seek a copy of all data held by his ex employers so that he can see what is on his personnel file.. this is happening.
Thanks for the responses..
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MarcusGarveyLives
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Posted: Friday June 23rd, 2006 20:32 |
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"... The defendant worked for another local authority and they have a policy that any court cases, be them civil or criminal while in their employment will lead to a disciplinary and or a dismissal ..."
I am afraid that this does not make sense to me. If you sue the police for wrongful arrest, how could this result in you being legally subject to disciplinary proceedings or dismissal? If you are acquitted of, for example, a charge of causing criminal damage to a bus stop, how could this lead to you being legally subject to disciplinary proceedings or dismissal?
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Backatya
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Posted: Friday June 23rd, 2006 21:25 |
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MarcusGarveyLives wrote: "... The defendant worked for another local authority and they have a policy that any court cases, be them civil or criminal while in their employment will lead to a disciplinary and or a dismissal ..."
I am afraid that this does not make sense to me. If you sue the police for wrongful arrest, how could this result in you being legally subject to disciplinary proceedings or dismissal? If you are acquitted of, for example, a charge of causing criminal damage to a bus stop, how could this lead to you being legally subject to disciplinary proceedings or dismissal?
I must admit this baffled me too. It would be interesting to know which local authority this is that has such a policy in their disciplinary procedures? Especially considering that many do not bar ex-convicts with spent convictions from applying for certain jobs.
I also got confused about the relevance of this 'other local authority the defendant worked for'. I could not understand what part this ex-employer played in the whole affair concerning the current employer. It was hard to be able to offer any constructive advice owing to the fact that I found the details of the issue rather confusing. Maybe it was just me????
Respect
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Kunjufu
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Posted: Friday June 23rd, 2006 22:34 |
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Maybe i can unconfuse the issue somewhat....the burden of proof to get a conviction is obviously very high.... So being cleared of a charge does not mean that an employers cannot then decide on the balance of probabilities that the person is no longer suitable to be employed..
It is also quite common if one is in a sensitive post near children and vulnerable adults for this to impact on your employment...In the case cited by EF MAX...it appears to me that the main problem was that the person was not in the union, and his employers exploited that fact to the fullest..
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EF MAX
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Posted: Saturday June 24th, 2006 11:49 |
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Okay..
With Local Authority 1 (LA1), the defendant’s work place.
With Local Authority 2 (LA2), the defendant’s home [council tax address]
LA2 accused the defendant of an over payment of their then entitled housing benefits (HB). This was disputed and LA2 then accused the defendant of obtain HB by deception. This was denied and the court case then followed.
The defendant worked for LA1. In the Social Security Act, any LA who pays out HB [or any government body that pays out benefit] can seek information that would ordinarily breech the Data Protection Act, from any company that they see fit to approach for said information about any body who is making or has made a claim. The company and in this case LA1 have a legal duty to respond with that information.
LA1 have in their Employers Code of Conduct, a subsection about employees behaviour outside of the work place that could bring the LA into disrepute and it states “that should ANY civil or criminal proceedings be brought against ANY staff member, whatever its nature, and regardless to the outcome, that the investigated employee, will be subject to a first level disciplinary and that based on the outcome of such a hearing, the employee can be subject to a higher level procedure and or dismissal from their office depending on the findings of the investigating officer/line manager�. Even if the matter is not proved by the agency that started the whole affair off in the first place..
It appears as if most LA have this buried within the code of conducts that they issue to employees.
Now based on the above. LA2 asked LA1 for information that they already had, they quoted that they needed to verify this information, but the reality was, that they knew that LA1 would have to invoke such a procedure and thus this mark would be placed on the defendants personnel file.
They also knew that if the defendant sort new employment, that it is quite common for new employers [especially within medicine and education and local gov per se] to ask, on the application form, have you been or are you currently involve in 1) any court cases, and 2) had any disciplinary action against you, and if yes, WHAT. You can imagine the hassle this cause.
Does this help the story along now…
Basically LA2 have taken advantage of the Social Security Act and have caused undue damage to the professional reputation of the defendant, for now they are unemployed and struggling to move forward within the field of education for which they are trained in.. The unemployment situation would not have been so, had personal references from the workplace been truthful and positive.. but as a new employer, would you really want to employ a stranger with a track record based on the above.. no smoke without fire springs to mind.
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EF MAX
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Posted: Friday June 8th, 2007 07:20 |
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UPDATE:
almost a year later.. well I have a case but need a solicitor with balls who is willing to fight. Have had two barristers look at things and feel there is a prima facia case but there appears to be issues over what, if any compensation might be gained and thus pay their bills.
Basically the reference needs to be honest, fair and balanced and not misrepresent the facts to the reader..
Well the reference was honest but it was not fair, nor was it balanced and it did misrepresent the facts to the reader.
Started things off in the local County Court but they say it needs to be issued in the High Court... so does anyone know any buddy solicitors willing to work on a no win no fee basis and get their teeth into my local Council or do I have to just watch the deadline (July 19th) just slip by and let them get away with it..
All advice and guidance welcome..
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