Jump to content

Giggins

Registered Users

Change your profile picture
  • Content Count

    23
  • Avg. Content Per Day

    0
  • Joined

  • Last visited

Community Reputation

1 Neutral

About Giggins

  • Rank
    Basic Account Holder
  1. Hmmm.. I am of the opinion, that your friend has every right to see all the evidence against him, including the witness statements, when he is called back into work to give his/her side of the story. In the case of Spink -v- Express Foods Limited [1990] IRLR 320 it was held: "It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case." Notwithstanding, to be allowed to see the two witness statements, which have been lodged. Furthermore, as everybody has been said, to be honest. In this instance, as the employer is relying on the witness statements provided by other employees', I am wonder whether your friend should lodge a witness statement as a [statement of truth] prior to going to any hearing with his employer. That way the [onus] is on the employer to act fairly and impartially, and act [reasonably] in light of all the evidence. Whilst the employer is acting upon information of an [allegation] the employer still has to observe the implied term of mutual trust and confidence and not 'act' in a manner, which is likely to destroy that trust and confidence.
  2. I am of the opinion as is elpulpo & Sidewinder. It is a civil matter.....
  3. It appears to me that your are being shown the door, and you have to make a decision about what to do. You know your situation better than anybody. You have to decide whether to invoke the grievance procedure, and whether it could make things worse. I would read through the pages on "breach of contract" edited and see if anything is relevant to your circumstances, which you could use. It may help - it may not. Kind regards - Giggins
  4. I can understand how your manager may have felt, given that you were 'using' your cellphone whilst he was talking. However, his/her actions in engaging other employees to spy on you, may amount to a breach of the mutual trust and confidence. EDIT. Your employer should not 'instruct or engage' other 'ordinary employees' to furnish information, with regards to your person, work, or performance. It is my opinion that management have taken this too far, and are 'acting in a manner which is very likely to destroy' the mutual trust and confidence. Further, under the auspices of the DPA 1998, I would be inclined to ask for copies of the witness statements which have been submitted to management, as you have every right to see what your employer holds on you in written form. It is my belief, that your employer is seeking to 'stigmatise' you, and urge you to google [Malik -v- BCCI]. Any defamatory or disparaging comments, which have been made against you in these statements, can be used as 'evidence' of management acting in a 'capricious manner'. Good luck - Giggins
  5. Miltonguyphil - My opinion is that sidewinder is right on the money. It is what is "reasonable". From what you have said, I believe the hours are [unreasonable] given the fact they run over virtually all the time.
  6. No, but be careful you don't breach the mutual trust and confidence.
  7. Eastern and Coastal Kent PCT v Grey (IDS 875) The duty to make adjustments does not apply if the employer does not know, and could not be reasonably expected to know, that the employee has a disability and is likely to be placed at a substantial disadvantage.
  8. I am of the opinion, that this may amount to yet another case of a "breach of the mutual trust and confidence." Malik v BCCI 1997 IRLR "An employer shall not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee." Morrow v Safeway Stores [2002] IRLR 9 The EAT holds that "any breach of the implied duty of trust and confidence will inevitably be repudiatory, entitling the employee to resign and claim constructive dismissal." I am not suggesting your partner claims constructive dismissal. However, given the circumstances, it remains a possibility.
  9. I am of the [opinion] that this "unwanted conduct" amounts to a breach of the "mutual trust and confidence" and therefore agree with BankFodder. Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 "The employer sall not conduct itself in a manner calculated and likely to destroy or seriously damage the mutual trust and confidence". The case of Morrow v Safeway Stores plc [2002] IRLR 9 is very much the same as yours, whereas a boss gave an employee a ticking off in front of other employees. (google it). In this case, the EAT overruled the Tribunal, and held that "any breach of the implied duty of trust and confidence will inevitably be repudiatory, entitling the employee to resign and claim constructive dismissal." I am not suggesting you do resign, only bring this case to the attention of the CAB. Hope it helps.
  10. This may have no bearing. However, if your friend has a disability, and has been late for work due to his/her "impairment", it may be that the employer needed to take this into account - viz, by way of making a "reasonable adjustment". There are a few cases where employees' have been late for work (Dickens -v- O2) due to the excessive demands of the job, and the very fact that the employee is unable to cope with the demands of the job. As such, it is incumbent upon the employer (duty of care) to take reasonable and practicable steps to discover whether reason/s exist (which it might be unaware of) which is causing the employees lateness. An employer who acts with "due diligence" would establish the facts prior to acting in such a heavy handed manner.
  11. Nicklea - it is evident from the subsequent posts this user has submitted on this thread, that s/he believes the manager in question does in fact have an ulterior motive - and as such, the aggrieved employee fully intends to invoke the grievance procedure, as I have suggested. "Thank you I definitely want to do a SAR as I'm convinced an ulterior motive is absolutely behind this." Therefore, I stand by my post, and what is stated within it - that the information is justified and accurate, not as you aver.....
  12. A few points come to mind. 1. I very much doubt the "mutual trust and confidence" is applicable here, and or applies, as you were not at work during the material time you were seen out on the town. It is my opinion that the mutual trust does not apply as your employer avers, as these events did not occur during the "course of your employment" and took place after 'working hours'. 2. I believe you employer is not acting in "good faith". In the case of Spink -v- Express Foods Limited [1990] IRLR 320 it was held: "It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case." 3. The allegation that you were drinking is not based upon fact. Therefore, your employer should take what you tell it at "face value", and not believe hearsay evidence by third parties. I would be inclined to put forward your own witness statement, stating that you were not drinking as is alleged, and request your employer provides proof otherwise, and or drops the matter with immediate effect. 4. I believe should your employer wish to pursue the matter, (subjecting you to this disciplinary hearing) may in itself, amount to a breach of the mutual trust and confidence. Further, your employer has hardly kept this matter "confidential" as it would appear to me that everyone knows about this hearing, and the allegations against you. Let's establish the facts: 5. Your employer has "constructive knowledge" that you have an "impairment", which adversely effects your "day to day activities". As such, it effects your abilities to perform your duties at work. It is also aware that "stress" is a trigger for your "impairment". By your employer's own volition, by subjecting you to a needless disciplinary hearing, the employer is inducing palpable "stress" which it is aware is a "trigger" and "exacerbates" your "impairment". Put short, subjecting you to a disciplinary hearing may in itself amount to a "discriminatory practise" - especially where your doctor has provided "medical evidence" to support that stress is a trigger for your impairment, and or your employer is aware of this fact. Good luck
  13. I fully agree with what papasmurf1cx has stated. The fact that you were unable to come into work due to your finances would not (in my opinion) amount to a discriminatory practise by the employer. However, it is obvious this manageress has little understanding of your "mental impairment". I would put in writing to her that the next time she wants a meeting with you, that you are given "reasonable" notice prior to any meeting taking place. Further, it sounds to me like she is covering the company's liability issue, with regard to your impairment, by placing in writing that there are no further "reasonable adjustments" the company can make for you. These are her words and not yours! Has the company (i) undertaken a risk assessment to assess the "risk of harm" to your health - or, was this meeting the "risk assessment" after the meeting with your OH DR? The employer has a "duty of care" to recognise the accumulative effects of both "anxiety" and "depression" have upon your "abilities and capabilities" to undertake you job role. Depression is ongoing, and anxiety/panic attacks are usually part and parcel of this impairment (depression). Therefore, it might be worth discussing with your doctor any anxiety disorders you have, and getting these imputed on to your medical records in the event you find the need to refer to a Tribunal at a later date. The more strings you can add to your bow, places a greater "duty of care" upon your employer to act with "due diligence". Good luck.
  14. I am not sure that your boss keeping a diary amounts to a contravention of the DPA 1998. I would contact the ICO on 0303 123 1113 - the ICO deal with breaches of the DPA 1998 and would be in a good position to give you a definitive answer. However, I can say that you are legally entitled to see all information, which your employer keeps on you. A request in writing from yourself would mean your employer would have to provide the information within 40 days. However, the fact your boss is keeping a diary in written form suggests an ulterior motive, and induces the opinion it is going to be used in a negative way at some point in the future. I would invoke Article 8 of the Human Rights Act 1998, with regard to the "Right to Privacy". Two things spring to mind here: 1. I believe your bosses actions amount to a breach of the "mutual trust and confidence". He is abusing the power which he delegates, and is acting in a capricious manner. 2. This leaves you two options - the formal or informal route: (i) The informal route would be to tackle him on the matter whilst secretly recording your conversation on your mobile telephone. Have a witness present. (ii) The second would be to invoke the grievance procedure, and place on the record your concerns regarding his actions, as they are clearly disingenuous. I believe this route is more appropriate, as your boss is not acting in "good faith". (iii) Send your written formal grievance via email, to the organisations HR Dept. I would also be inclined to CC your written grievance to a director within the organisation (directors have fiduciary duties to protect employees' against "harassment"). I suggest you state within your grievance that you contend your bosses "unwanted conduct" amounts to "harassment" and is being undertaken to "intimidate" you. You need to state that you find your bosses behaviour both "distressing" and "stressful". As such, it is needlessly causing you "anxiety" which is "prejudicial" to your health. (iv) Any concerns your boss has regarding your 'conduct or performance' should be addressed according to the organisations policies and procedures, and not by him keeping a secret diary. Further, raising these issues within a "meeting" amongst your peers is a "deliberate act" orchestrated to cause you "humiliation". (v) State within your formal grievance that you contend your bosses conduct may amount to a breach of the "mutual trust and confidence". Your boss is failing to observe the "good faith performance" by acting in an underhanded manner. I would not mince your words here, your boss is clearly in the wrong. 3. I feel that if you let this matter go without addressing it, there will be further problems down the road for you. Good luck
×
×
  • Create New...