Cemetery worker backed by judge over tribunal

LEGAL FIGHT: David Allen, pictured last year

LEGAL FIGHT: David Allen, pictured last year

First published in News Worcester News: Tom Edwards by , Political Reporter

A FORMER cemetery gatekeeper who won his case against Worcester City Council when they unfairly sacked him is celebrating after an appeal was thrown out.

David Allen, who worked for the authority for 30 years, took his employers to an employment tribunal in July 2011.

The 49-year-old, who was also employed by the council as a gravedigger, was dismissed on ill-health grounds after developing the condition vibration whitefinger, caused by using machinery.

An in-house investigation then found his son Mark had used a council strimmer without permission, and he was fired – a decision upheld by a councillors’ appeal panel at the time.

Last year Mr Allen won his case at Birmingham Emplyment Tribunal, only for council chiefs to take the matter to an Employment Appeal Tribunal in London.

But last week Judge William Birtles, sitting on the appeal, refused it and said the original court must now decide what compensation Mr Allen is due.

Mr Allen believes he may have a claim for up to £20,000 – which would come from taxpayers – but this has yet to be confirmed.

As of today the authority has 14 days remaining to consider an appeal over the rejection.

Mr Allen, who lives in Canterbury Road, Ronkswood, said: “I’m delighted by the decision because it’s been a long time to get to this stage.

“It has now been sent back to the original judge for compensation to be awarded, so I’ll have to wait and see how it goes.

“Because I haven’t had any money to get a solicitor I’ve had to defend myself, so it’s been tough.”

Mr Allen was evicted from his on-site house last year and has got a job two days a week at Bishop Perowne CE College, doing general work such as gardening.

He was so cash-strapped last year that he put banners outside his home pleading for help from a solicitor, but after nothing came from it he defended himself.

A city council spokeswoman said: “Although there are two sides to this story, we do accept the tribunal’s decision.

“We have not yet received the tribunal’s written judgement and we are unable to comment further for reasons of confidentiality.”

Comments (9)

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1:37pm Mon 17 Dec 12

More Tea Vicar says...

I can easily imagine that there are two sides to this story, but I hope the outcome is satisfactory to all concerned.

The thing that struck me was how hard it is for this presumably relatively low-paid worker to get a fairly small reward, compared to the large amounts freely handed out for no apparent reason to people who seem to be massively overpaid in the first place, in the public sector.
I can easily imagine that there are two sides to this story, but I hope the outcome is satisfactory to all concerned. The thing that struck me was how hard it is for this presumably relatively low-paid worker to get a fairly small reward, compared to the large amounts freely handed out for no apparent reason to people who seem to be massively overpaid in the first place, in the public sector. More Tea Vicar
  • Score: 0

5:13pm Mon 17 Dec 12

RobertR says...

I agree with More Tea Vicar.
You only have to cast your minds back to Entwhistle of the BBC and Fred Goodwin of RBS to see that failure is handsomely rewarded.
I agree with More Tea Vicar. You only have to cast your minds back to Entwhistle of the BBC and Fred Goodwin of RBS to see that failure is handsomely rewarded. RobertR
  • Score: 0

11:18am Tue 18 Dec 12

pinkfluff says...

More Tea Vicar wrote:
I can easily imagine that there are two sides to this story, but I hope the outcome is satisfactory to all concerned.

The thing that struck me was how hard it is for this presumably relatively low-paid worker to get a fairly small reward, compared to the large amounts freely handed out for no apparent reason to people who seem to be massively overpaid in the first place, in the public sector.
Indeed.
[quote][p][bold]More Tea Vicar[/bold] wrote: I can easily imagine that there are two sides to this story, but I hope the outcome is satisfactory to all concerned. The thing that struck me was how hard it is for this presumably relatively low-paid worker to get a fairly small reward, compared to the large amounts freely handed out for no apparent reason to people who seem to be massively overpaid in the first place, in the public sector.[/p][/quote]Indeed. pinkfluff
  • Score: 0

2:58pm Tue 18 Dec 12

Jabbadad says...

David Allen has my sympathy's but he must have known he was going into a dead end job.
David Allen has my sympathy's but he must have known he was going into a dead end job. Jabbadad
  • Score: 0

7:21pm Thu 20 Dec 12

jeremygeere says...

I want to offer my congratulations to David Allen for having managed so well without legal assistance and to express my concern that people like David Allen are left having to pursue claims like this on their own. Often these are David v Goliath contests because the employer has vastly more resources than the employee.
I want to offer my congratulations to David Allen for having managed so well without legal assistance and to express my concern that people like David Allen are left having to pursue claims like this on their own. Often these are David v Goliath contests because the employer has vastly more resources than the employee. jeremygeere
  • Score: 0

7:27pm Thu 20 Dec 12

jeremygeere says...

I previously worked at Worcester Citizens Advice Bureau & WHABAC as an employment caseworker and sought to give assistance to people with employment problems though resources were very limited.

The Bureau decided to end the employment casework service at the end of September 2010 and I was made redundant.

Since then I have been seeking to provide an informal service providing free of charge assistance for people with employment claims. I am committed to doing this full time and hope to establish the work properly as a charitable company limited by guarantee and registered with AdviceUK.
I previously worked at Worcester Citizens Advice Bureau & WHABAC as an employment caseworker and sought to give assistance to people with employment problems though resources were very limited. The Bureau decided to end the employment casework service at the end of September 2010 and I was made redundant. Since then I have been seeking to provide an informal service providing free of charge assistance for people with employment claims. I am committed to doing this full time and hope to establish the work properly as a charitable company limited by guarantee and registered with AdviceUK. jeremygeere
  • Score: 0

7:32pm Thu 20 Dec 12

jeremygeere says...

My work is supported by a team of volunteers but we have no funding for the work and so are very limited in relation to the number of cases we can take on.

But people like David Allen should not be left having battles like this on their own. I am delighted that David has succeeded but for I fear that for every one success like this there are many cases of people who have been unable to pursue claims because of lack of support and assistance.

Most of my volunteers are people who have had their own experience of pursuing a Tribunal claim and in turn want to help others.
My work is supported by a team of volunteers but we have no funding for the work and so are very limited in relation to the number of cases we can take on. But people like David Allen should not be left having battles like this on their own. I am delighted that David has succeeded but for I fear that for every one success like this there are many cases of people who have been unable to pursue claims because of lack of support and assistance. Most of my volunteers are people who have had their own experience of pursuing a Tribunal claim and in turn want to help others. jeremygeere
  • Score: 0

9:06pm Thu 20 Dec 12

jeremygeere says...

To encourage people that it is possible to get justice even when it feels as if everything is stacked against you see the case of Da Silva v Senoble reported on the internet by Ian Dodds Consulting.

Mr Da Silva worked at Senoble's Broadheath premises near Worcester.
To encourage people that it is possible to get justice even when it feels as if everything is stacked against you see the case of Da Silva v Senoble reported on the internet by Ian Dodds Consulting. Mr Da Silva worked at Senoble's Broadheath premises near Worcester. jeremygeere
  • Score: 0

9:08pm Thu 20 Dec 12

jeremygeere says...

Ian Dodds Consulting report as follows:

Harassment claim upheld due to manager’s lack of credibility

In Da Silva v Senoble UK Ltd, a tribunal upheld a racial harassment claim made by an employee after he had been repeatedly humiliated by his manager calling him a "Brazilian ****". The tribunal rejected the manager’s denial, as his credibility was undermined by evidence that he had called two Polish women "Fanny".

Da Silva is Brazilian. He lodged a claim of racial harassment alleging that his manager, Rai, had repeatedly humiliated him in front of his colleagues by calling him a "Brazilian ****" and "Brazilian c**t". Rai denied the allegation, pointing out that he himself is of Pakistani origin. But evidence from work colleagues showed that Rai had been picking on Da Silva for over two years and he had admitted making sexist comments to two Polish female workers by calling them "Fanny".

The tribunal decided on the balance of probabilities, that Rai, despite his denial, was capable of using inappropriate language to colleagues and had repeatedly made derogatory comments to Da Silva related to his Brazilan nationality for over a period of two years, given the evidence given by Da Silva and his colleagues, and by drawing an inference from what Rai accepted he had said to the Polish women. The discriminatory comments had violated Da Silva’s dignity and constituted harassment contrary to S.26 of the Equality Act 2010.
Ian Dodds Consulting report as follows: Harassment claim upheld due to manager’s lack of credibility In Da Silva v Senoble UK Ltd, a tribunal upheld a racial harassment claim made by an employee after he had been repeatedly humiliated by his manager calling him a "Brazilian ****". The tribunal rejected the manager’s denial, as his credibility was undermined by evidence that he had called two Polish women "Fanny". Da Silva is Brazilian. He lodged a claim of racial harassment alleging that his manager, Rai, had repeatedly humiliated him in front of his colleagues by calling him a "Brazilian ****" and "Brazilian c**t". Rai denied the allegation, pointing out that he himself is of Pakistani origin. But evidence from work colleagues showed that Rai had been picking on Da Silva for over two years and he had admitted making sexist comments to two Polish female workers by calling them "Fanny". The tribunal decided on the balance of probabilities, that Rai, despite his denial, was capable of using inappropriate language to colleagues and had repeatedly made derogatory comments to Da Silva related to his Brazilan nationality for over a period of two years, given the evidence given by Da Silva and his colleagues, and by drawing an inference from what Rai accepted he had said to the Polish women. The discriminatory comments had violated Da Silva’s dignity and constituted harassment contrary to S.26 of the Equality Act 2010. jeremygeere
  • Score: 0

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