wrongful dismissal??

[M_A_A_B]

Can anyone tell me if this might be classed as wrongful dismissal and where we go from here please?

 

My boyfriend was a week away from the end of his 6 month probationary period at work. Yesterday (Tuesday) he was called into a meeting after he finished work. He'd had no notification of this prior to finishing that day. The 'panel' told him it was bad news, gave him a letter which indicated that they were not happy with an incident last week (he had hardly any sleep and the next day went into work but told them that because of this lack of sleep he would be unable to drive as it was unsafe...he was up through the night looking after me as I'm disabled and he is my carer). He tried to explain but they didnt want to hear it. He was told to bring his keys to them and that he wouldnt be needed back at work.

 

The only other disciplinary type action he's had against him in this job is a written warning about some paperwork he needed to bring in but wasnt told the proper procedure when he began at the job. He's had no verbal warnings, no further written warnings and certainly no final written warning.

 

After reading his contract and, as far as I was aware anyway, they shouldnt have been able to just sack him for this offence straight off, they should have informed him beforehand that he had a disciplinary meeting, allowed him to bring a representative, given him opportunity to defend himself against the accusations, and investigated this thoroughly (they couldnt have as it only happened last Friday!)....unless he had received a final written warning, which he hasnt. Also, in his contract it says if either party wishes to end the employment one weeks notice must be given, can he hold them to that? Surely they cant class this as gross misconduct can they??

 

He hasnt been there over a year so I understand he cant claim unfair dismissal but could he claim wrongful dismissal? Is there anything we can do about this? We are going to try and get some information of a local service similar to CAB but I'm not sure how much they'll be able to help. It says in his contract he has 14 days to issue an appeal in writing...can anyone give some ideas of how to word the appeal letter?

 

Thanks in advance

[MilkTrayMan]

Is your b/f a Member of a Trade Union??

...

[MilkTrayMan]

The following Websites may be of help to U...

 

Acas - Home

 

A-Z of Employment - BERR

 

Employment

 

 

...

[M_A_A_B]

he isnt a member of a trade union unfortunatly Thanks for the links...I'll have a look now.

[29spots]

Hi MAAB If you appeal you have to think if your boyfriend wants his job back, does he really want to work for a company that treats him like that? You should be entitled to the weeks notice and the CAB should be able to complie a letter to help get that for you. But as for claiming unfair dismissal you will not likely get any compensation the best thing to do is speak with the CAB.

[M_A_A_B]

After my bf spoke to ACAS they informed him he will not be able to claim unfair dismissal as he had not been working there for 12 months or longer. They said that it is very likely we could claim breach of contract. He will now be seeking legal advice.

 

I dont think he would really like to go to back to his job there after this but it's the principal of it all....

[advisee]

ACAS advice is rubbish.

 

First of all, yes this is wrongful dismissal, and he is entitled to his notice.

 

Secondly, there was a European ruling yesterday (by the Advocate General, case of Coleman v Atteridge Law) stating that to discriminate against a worker because they are a CARER of a disabled person is itself covered by the disability discrimination act. For this, you do NOT need 12 months service to be able to claim unfair dismissal on the grounds of disability discrimination.

[prushton]

Hi , I am a hgv petroleum tanker driver working for Bp and a shop steward with the T.G.W.U. Your boyfriends predicament is not uncommon, I suspect that as he was close to his 6 mth probationary period this had some bearing on the employers decision to terminate his employment.

 

Unfortunately as you have stated, as he has only been employed by them for a short period of time this limits his options as to what action he can take.

 

Lets look at the facts :-

 

 

A/ Your boyfriends initial training regarding the correct proceedure for completing paper work when he began working was deficient and resulted in the first disciplinary action and a written warning valid for ?

 

B/ It is your boyfriends responsibility to make sure that he has recieved sufficient rest between shifts to enable him to carry out his duties.

 

C/ There is mitigating circumstances in that he was up all night caring for yourself in the role of your carer.

 

d/ He informed his employer that as a result of caring for yourself through the night he was unfit to drive , this was obviously the right thing to have done. Had he been involved in an accident as a result of a lack of sleep and someone was hurt, he would find himself explaining his actions in court.

 

The company should have written to him about the incident an invited him to attend an interview to establish the facts. ( this is not a disciplinary response merely an interview to establish the facts, and whether there should be a disciplinary response.)

 

Once this interview has taken place , and he has the chance to put his case to his employer, he must be informed of the outcome , and notified in writing that the company intends to take disciplinary action as a result. There are disciplinary proceedures laid down in his terms and conditions of employment ( contract of employment) that the company must adhere to before summarily dismissing him.

 

Once they have gone down the disciplinary route, they must inform him of the case against him and give him the opportunity to defend himself , with representation and informed of the outcome of that disciplinary action. He does have the right to appeal against the decision and this continues until the process is exhausted.

 

The result may still be dismissal but at the very least they should have followed these basic proceedures, indeed these are the basic requirement laid down in ACAS code of practice for disciplinary processes. I have taken the liberty of cut and pasting the ACAS code of practice for disciplinary proceedures below for you to read its quite a long document.

 

 

Informal action

11. Cases of minor misconduct or unsatisfactory performance are usually

best dealt with informally. A quiet word is often all that is required to

improve an employee’s conduct or performance. The informal

approach may be particularly helpful in small firms, where problems

can be dealt with quickly and confidentially. There will, however, be

situations where matters are more serious or where an informal

approach has been tried but is not working.

 

12. If informal action does not bring about an improvement, or the

misconduct or unsatisfactory performance is considered to be too

serious to be classed as minor, employers should provide employees

with a clear signal of their dissatisfaction by taking formal action.

Formal action Inform the employee of the problem

13. The first step in any formal process is to let the employee know in

writing what it is they are alleged to have done wrong. The letter or

note should contain enough information for the individual to be able

to understand both what it is they are alleged to have done wrong

and the reasons why this is not acceptable. If the employee has

difficulty reading, or if English is not their first language, the employer

should explain the content of the letter or note to them orally.

The letter or note should also invite the individual to a meeting at

which the problem can be discussed, and it should inform the

individual of their right to be accompanied at the meeting (see

section 3). The employee should be given copies of any documents

that will be produced at the meeting.

Hold a meeting to discuss the problem

14. Where possible, the timing and location of the meeting should

be agreed with the employee. The length of time between the

written notification and the meeting should be long enough to allow

the employee to prepare but not so long that memories fade.

The employer should hold the meeting in a private location and

ensure there will be no interruptions.

 

15. At the meeting, the employer should explain the complaint against

the employee and go through the evidence that has been gathered.

The employee should be allowed to set out their case and answer any

allegations that have been made. The employee should also be

1

allowed to ask questions, present evidence, call witnesses and be

given an opportunity to raise points about any information provided

by witnesses.

 

16. An employee who cannot attend a meeting should inform the

employer in advance whenever possible. If the employee fails to

attend through circumstances outside their control and unforeseeable

at the time the meeting was arranged (eg illness) the employer should

arrange another meeting. A decision may be taken in the employee’s

absence if they fail to attend the re-arranged meeting without good

reason. If an employee’s companion cannot attend on a proposed

date, the employee can suggest another date so long as it is

reasonable and is not more than five working days after the date

originally proposed by the employer. This five day time limit may be

extended by mutual agreement.

 

Decide on outcome and action

17. Following the meeting the employer must decide whether disciplinary

action is justified or not. Where it is decided that no action is justified

the employee should be informed. Where it is decided that

disciplinary action is justified the employer will need to consider what

form this should take. Before making any decision the employer

should take account of the employee’s disciplinary and general

record, length of service, actions taken in any previous similar case,

the explanations given by the employee and – most important of all –

whether the intended disciplinary action is reasonable under the

circumstances.

 

18. Examples of actions the employer might choose to take are set out in

paragraphs 19-25. It is normally good practice to give employees at

least one chance to improve their conduct or performance before

they are issued with a final written warning. However, if an employee’s

misconduct or unsatisfactory performance – or its continuance – is

sufficiently serious, for example because it is having, or is likely to

have, a serious harmful effect on the organisation, it may be

appropriate to move directly to a final written warning. In cases of

gross misconduct, the employer may decide to dismiss even though

the employee has not previously received a warning for misconduct.

(Further guidance on dealing with gross misconduct is set out at

paragraphs 35-36.)

S

19. Following the meeting, an employee who is found to be performing

unsatisfactorily should be given a written note setting out:

• the performance problem;

• the improvement that is required;

• the timescale for achieving this improvement;

• a review date; and

• any support the employer will provide to assist the employee.

 

20. The employee should be informed that the note represents the first

stage of a formal procedure and that failure to improve could lead to

a final written warning and, ultimately, dismissal. A copy of the note

should be kept and used as the basis for monitoring and reviewing

performance over a specified period (eg six months).

First formal action – misconduct

21. Where, following a disciplinary meeting, an employee is found guilty

of misconduct, the usual first step would be to give them a written

warning setting out the nature of the misconduct and the change in

behaviour required.

 

22. The employee should be informed that the warning is part of the

formal disciplinary process and what the consequences will be of a

failure to change behaviour. The consequences could be a final

written warning and ultimately, dismissal. The employee should also

be informed that they may appeal against the decision. A record of

the warning should be kept, but it should be disregarded for

disciplinary purposes after a specified period (eg six months).

 

23. Guidance on dealing with cases of gross misconduct is provided in

paragraphs 35-36.

Final written warning

24. Where there is a failure to improve or change behaviour in the

timescale set at the first formal stage, or where the offence is

sufficiently serious, the employee should normally be issued with a

final written warning – but only after they have been given a chance

to present their case at a meeting. The final written warning should

give details of, and grounds for, the complaint. It should warn the

employee that failure to improve or modify behaviour may lead

to dismissal or to some other penalty, and refer to the right of appeal.

ECTION 1 – DISCIPLINARY RULES AND

The final written warning should normally be disregarded for

disciplinary purposes after a specified period (for example

12 months).

Dismissal or other penalty

25. If the employee’s conduct or performance still fails to improve, the

final stage in the disciplinary process might be dismissal or (if the

employee’s contract allows it or it is mutually agreed) some other

penalty such as demotion, disciplinary transfer, or loss of seniority/

pay. A decision to dismiss should only be taken by a manager who

has the authority to do so. The employee should be informed as soon

as possible of the reasons for the dismissal, the date on which the

employment contract will terminate, the appropriate period of notice

and their right of appeal.

 

26. It is important for employers to bear in mind that before they dismiss

an employee or impose a sanction such as demotion, loss of seniority

or loss of pay, they must as a minimum have followed the statutory

dismissal and disciplinary procedures. The standard statutory

procedure to be used in almost all cases requires the employer to:

First formal action – unsatisfactory performance

SECTION 1 – DISCIPLINARY RULES AND PROCEDURES

Write to the employee notifying them of the allegations against them

and the basis of the allegations and invite them to a meeting to discuss

the matter.

 

Hold a meeting to discuss the allegations – at which the employee has

the right to be accompanied – and notify the employee of the decision.

 

If the employee wishes to appeal, hold an appeal meeting at which the

employee has the right to be accompanied – and inform the employee

of the final decision.

 

27. More detail on the statutory standard procedure is set out at Annex A.

There is a modified two-step procedure for use in special circumstances

involving gross misconduct and details of this are set out at Annex B.

Guidance on the modified procedure is contained in paragraph 36.

There are a number of situations in which it is not necessary for

employers to use the statutory procedures or where they will have been

deemed to be completed and these are described in Annex E.

 

28. If the employer fails to follow this statutory procedure (where it

applies), and an employee who is qualified to do so makes a claim

for unfair dismissal, the employment tribunal will automatically find the

dismissal unfair. The tribunal will normally increase the compensation

awarded by 10 per cent, or, where it feels it is just and equitable to do

so, up to 50 per cent. Equally, if the employment tribunal finds that an

employee has been dismissed unfairly but has failed to follow the

procedure (for instance they have failed to attend the disciplinary

meeting without good cause), compensation will be reduced by,

normally, 10 per cent, or, if the tribunal considers it just and equitable

to do so, up to 50 per cent.

 

29. If the tribunal considers there are exceptional circumstances,

compensation may be adjusted (up or down) by less than 10 per cent

or not at all.

 

30. Employers and employees will normally be expected to go through the

statutory dismissal and disciplinary procedure unless they have

reasonable grounds to believe that by doing so they might be exposed

to a significant threat, such as violent, abusive or intimidating behaviour,

or they will be harassed. There will always be a certain amount of stress

and anxiety for both parties when dealing with any disciplinary case,

but this exemption will only apply where the employer or employee

reasonably believes that they would come to some serious physical or

mental harm; their property or some third party is threatened or the

other party has harassed them and this may continue.

 

31. Equally, the statutory procedure does not need to be followed if

circumstances beyond the control of either party prevent one or

more steps being followed within a reasonable period. This will

sometimes be the case where there is a long-term illness or a long

period of absence abroad but, in the case of employers, wherever

possible they should consider appointing another manager to deal with

the procedure.

 

32. Where an employee fails to attend a meeting held as part of the

statutory discipline procedure without good reason the statutory

procedure comes to an end. In those circumstances the employee’s

compensation may be reduced if they bring a successful complaint

before an employment tribunal. If the employee does have a good

reason for non-attendance, the employer must re-arrange the

meeting. If the employee does not attend the second meeting for

good reason the employer need not arrange a third meeting but there

will be no adjustment of compensation.

What if a grievance is raised during a disciplinary case?

33. In the course of a disciplinary process, an employee might raise a

grievance that is related to the case. If this happens, the employer

should consider suspending the disciplinary procedure for a short

period while the grievance is dealt with. Depending on the nature of

the grievance, the employer may need to consider bringing in another

manager to deal with the disciplinary process. In small organisations

this may not be possible, and the existing manager should deal with

the case as impartially as possible.

 

34. Where the action taken or contemplated by the employer is dismissal

the statutory grievance procedure does not apply. Where the action

taken or contemplated is paid suspension or a warning the statutory

grievance procedure and not the dismissal and disciplinary

procedure applies to any grievance. However, where the employer

takes, or is contemplating other action short of dismissal and asserts

that the reason for the action is conduct or capability related, the

statutory grievance procedure does not apply unless the grievance is

that the action amounts, or would amount, to unlawful discrimination,

or that the true reason for the action is not the reason given by the

employer. In those cases the employee must have raised a written

grievance in accordance with the statutory grievance procedure

before presenting any complaint to an employment tribunal about the

issue raised by the grievance. However, if the written grievance is

raised before any disciplinary appeal meeting, the rest of the

grievance procedure does not have to be followed, although the

employer may use the appeal meeting to discuss the grievance.

Dealing with gross misconduct

35. If an employer considers an employee guilty of gross misconduct,

and thus potentially liable for summary dismissal, it is still important

to establish the facts before taking any action. A short period of

suspension with full pay may be helpful or necessary, although it

should only be imposed after careful consideration and should be

kept under review. It should be made clear to the employee that

the suspension is not a disciplinary action and does not involve

any prejudgement.

 

36. It is a core principle of reasonable behaviour that employers should

give employees the opportunity of putting their case at a disciplinary

meeting before deciding whether to take action. This principle applies

as much to cases of gross misconduct as it does to ordinary cases of

misconduct or unsatisfactory performance. There may however be

some very limited cases where despite the fact that an employer has

dismissed an employee immediately without a meeting an

employment tribunal will, very exceptionally, find the dismissal to be

fair. To allow for these cases there is a statutory modified procedure

under which the employer is required to write to the employee after

the dismissal setting out the reasons for the dismissal and to hold an

appeal meeting, if the employee wants one. The statutory procedure

that must be followed by employers in such cases is set out in Annex

B. If an employer fails to follow this procedure and the case goes to

tribunal, the dismissal will be found to be automatically unfair.

Dealing with absence from work

37. When dealing with absence from work, it is important to determine the

reasons why the employee has not been at work. If there is no

acceptable reason, the matter should be treated as a conduct issue

and dealt with as a disciplinary matter.

 

38. If the absence is due to genuine (including medically certified)

illness, the issue becomes one of capability, and the employer should

take a sympathetic and considerate approach. When thinking about

how to handle these cases, it is helpful to consider:

• how soon the employee’s health and attendance will improve;

• whether alternative work is available;

• the effect of the absence on the organisation;

• how similar situations have been handled in the past; and

• whether the illness is a result of disability in which case the

provisions of the Disability Discrimination Act 1995 will apply.

 

39. The impact of long-term absences will nearly always be greater on

small organisations, and they may be entitled to act at an earlier

stage than large organisations.

 

40. In cases of extended sick leave both statutory and contractual issues

will need to be addressed and specialist advice may be necessary.

Step 1

Step 2

Step 3

[M_A_A_B]

thank you for all your help

 

Prushton the point which you have made is the one we are making, they did not follow the correct procedure in terms of the action they took. He fully informed them of the situation with regards to him being my carer. On the day in question, he did go into work...he stayed in the office. There were two drivers at the company (including my b/f) and they currently only have one vehicle available so it shouldnt have been a problem for the other driver to do the driving duties. Unfortunately, her daughter was taken ill at school and she had to leave early.....as my b/f had not really had much sleep he considered it irresponsible and potentially dangerous for him to drive. They tried to arrange for someone else who works there to do the driving while my B/f sat with him to show him the pick ups but due to various reasons they decided this was not a suitable option and a member of the managers commitee decided that the bus would be cancelled and said she'd take full responsibility for that. My b/f still did a full days work, just was unable to drive. As far as we're concerned, the company never investigated this fully (they couldnt have, it was on the Friday and they sacked him on the Tuesday).

 

Anyway, we received all the information from b/fs file today as requested. It was all fairly confusing. The covering letter referred to several points in the terms from his contract which they also included. On of these sections referred to is regarding the notice period during the probationary term of the contract....it basically states that either party can give ones weeks notice of termination unless there is an incident of gross misconduct. They then refer to their company disciplinary procedure which explains that gross misconduct can be violence against another person, theft, putting people at risk (surely would have been gross misconduct if he would have driven with lack of sleep...) and their procedure of verbal warning, two written warnings and a final written warning before dismissal. They included a copy of the first written warning he received which we have a copy of already....that is the only warning they send and all that was in his file (unless they havent sent them which would be a bit stupid if they didnt)

 

They also included copies of monthly meetings he had with his manager which were general discussions to see if there were any problems he needed to raise or any ideas he had etc....not relevant to this.

 

They refer him to a section in the code of conduct about neglect of duties being a disciplinary offense.

 

Then, at the end of their letter, they say:

 

"In summation, the reason for your dismissal, after discussion by the *** management commitee, it was felt that, whilst still within your probationary period, you failed to meet the standards of work expected of employees."

 

Which is not what they said in the letter they gave to him when they dismissed him.

 

B/F has spoken to a solicitor today who says he needs to send a grievence letter to the company stating that under their own terms and conditions he has not committed gross misconduct. They did not state in the letter given to him when dismissed that he had the right to appeal, nor was he given the chance to have a representative present or defend himself. They are in breach of their own contract and due to this he can request 1 weeks severance pay, payment for any work that is owed and holiday pay owed to him within 28 days.

 

Also, the solicitor advised to put that he believes they terminated his employment because he is a carer of someone who is disabled (which is the reason he was unable to drive) and so under the disability discriminations act he would like his employment reinstated or he with esculate this to tribunal.

 

Obviously, he doesnt really want to work there anymore but would go back until he was able to find something else as obviously we need the money coming in.

 

Slightly confused about whether we need to put both things on the letter. Also does anyone know if there is a grievance letter template or example anywhere that we could use to base the letter on.

 

Many thanks (sorry this was so long!)

[prushton]

Hi , gross misconduct is defined as an intentional act, generally theft , misappropriation of company funds, claiming expenses you were not entitled to are all examples of gross misconduct.

 

Your boyfriends terms and conditions in the section dealing with disciplinary action will lay down examples of behaviour that the company considers to be gross misconduct, it will usually state something along the lines of " This list is not exhaustive " after a few examples of gross misconduct.

 

It appears that your boyfriend was dismissed because " he did not meet the required standards that the company expect of its employees"

 

With respect, I would say that this was complete rubbish, they dismissed him because it was convenient for them to do so.

 

 

Your boyfriend did nothing wrong, the company as the solicitor quite rightly points , did not follow even the most basic of disciplinary proceedures. There is only one instance where an employee can be summarily dismissed without disciplinary action having been taken and this is cases of gross misconduct. You would still have the right to appeal such a decision and ultimately could bring a case against the employer to an industrial tribunal , but it depends on the circumstances of dismissal.

 

 

The solicitor rightly tells your boyfriend to submit a grievance letter to the company about the way he was treated. I would do as the solicitor advises, I would also come at it from the angle that your boyfriend was indeed in no fit state to drive having been up all night caring for yourself, he should quote the Health and Safety at Work act 1994 which states :-

 

7 General duties of employees at work

It shall be the duty of every employee while at work--

(a) to take reasonable care for the health and safety of himself and of

other persons who may be affected by his acts or omissions at work; and

(b) as regards any duty or requirement imposed on his employer or any

other person by or under any of the relevant statutory provisions, to cooperate

with him so far as is necessary to enable that duty or requirement

to be performed or complied with.

 

By informing his employer that he was unfit to drive as a result of being up all night caring for yourself , he was fulfilling his obligation as an employee under the Health and Safety At Work Act section 7 ( as above ) This is a legal obligation and he should include this fact in his grievance letter to the company. ( Maybe he should contact the Health and Safety Executive and inform them as to what has happened as a result of him fulfilling his obligations under this act , it certainately wouldnt do any harm - I would. )

 

 

I have highlighted the relevent section he should quote to his employer. As far as a grievance template letter goes, there isnt a one size fits all solution, as long as all the relevent facts are included in the letter it should be ok, just head it Grievance regarding dismissal on such & such a date, That should be sufficient and await thier response ( keep A copy for yourselves and dont forget to send it recorded delivery ( That way they cannot deny having received it at a later date. )

 

I have copied below a grievance letter that I had to send to my company regarding loss of rest days as a result of attending T.G.W.U shop stewards courses last year, it will give you some idea how to go about your own to your boyfriends company.

 

 

 

 

Re: Grievance regarding Loss of rest days as a result of attending T.G.W.U shop steward courses.

 

 

Dear Michael,

 

Further to our recent telephone conversation regarding the above issue, and the response I received to my enquiry from DHL Human resources department. I am informed that The Human resources departments’ response is incorrect; as a result I now wish to register a grievance regarding this matter.

 

The T.G.W.U takes this issue very seriously. I would ask that you contact Clayton Roberts, a full time officer of the T.G.W.U as soon as possible on phone number ***** ********* so that we can arrange a meeting with DHL management at a mutually agreeable date and time in order that we may resolve this issue.

 

You will recall during our telephone conversation that you said that the Human resources department had informed you that “this issue arises all the time” and that DHL had “already been taken to an industrial tribunal regarding this matter and in fact had won the case”.

 

I would be grateful if you would supply me with the details of the case that the Human resources department refers to, removing any details that could identify an individual as per the requirements of The Data Protection Act 1988.

 

 

Yours sincerely,

[M_A_A_B]

thanks for that...all very helpful.

 

With the grievance letter, will it need to go through the details of how they did not follow their own terms? Bit confused about what the solicitor said too....he didnt explain if the letter should ask for the weeks severance pay, pay owed up to the date he was fired and holiday pay owed (which the solicitor said we should give 28 days for) as well as the stuff about the disability discriminations act (he told to ask for the employment to be reinstated for that)....both seem to contradict each other.

 

I think one of the reasons for his dismissal could be that they are a community project and may not have had enough funding, why they went about it like this though makes no sense at all.

 

Again, many thanks for all the help

[M_A_A_B]

ok....here's the draft I've prepared so far...can someone look it over for me and let me know if I need to include anything else or remove anything...also need some help with the bits in red, they are what the solicitor said but not sure whether to include one, both or neither as I'm confused about that bit!

 

Dear Mr ****,

I am writing to tell you that I wish to raise a grievance.

This action is being considered with regard to the following

circumstances.

I believe you are in breach of your own contract, of which I received 17th September 2007 and has been read and signed by both of us. There are several reasons for this:

1. I do not believe you have followed the correct disciplinary procedure. I have been given no verbal warning, one first written warning dated 26th October 2007 signed by **** ****, no following written warning and no final warning. It was stated in the letter I received 29th January 2008 that I had received a final warning but any documentation of this was not sent to me when I requested all the information from my personal employment file in the letter received by you dated 30th January 2008 and I have no knowledge of this.

2. I was not given any notice that a disciplinary meeting would be taking place and thus had no opportunity to arrange for a representative to accompany me (reference to **** worker disciplinary procedure, section 5).

3. I was given no opportunity at any time during the meeting to explain or justify my actions (reference to **** worker disciplinary procedure, section 6).

4. In the letter received at the meeting dated 29th January 2008 it does not state that I have any right to appeal the decision.

5. In the letter dated 29th January 2008 it states my contract was terminated with immediate effect as I had already received a final warning (please see above), yet in the letter received dated 31st January 2008 it states that my employment was terminated while still in the probationary period after failing to meet the required standards of work. This is contradictory and if it was the case that I was dismissed under the terms of my probationary period I should have been given one weeks notice (****terms and conditions of employment, section 10).

6. I believe no effort was made to investigate this matter before my employment was terminated.

7. I believe you have terminated my employment because I am the carer of a disabled person. On the days in question (25th and 28th January 2008), I had not received more than three hours sleep as I had been up throughout the night caring for my disabled partner. I was unfit to drive due to this and believe it would have been irresponsible and potentially dangerous for me to do so, because of this I believe I was fulfilling my obligation as an employee under the Health and Safety At Work Act, section 7a and also believe I would have been liable for gross misconduct under your own contract (**** worker disciplinary procedure, section 3) if I had driven on those days.

Due to points 1-6 I am entitled to one week’s severance pay, any pay owed to me for work up until 29th January 2008 and any accrued holiday pay in 28 days from the date of this letter or I will esculate this to employment tribunal.

Due to point 7, under the disability discrimination act, I would like my employment reinstated or I will esculate this to tribunal.

I am entitled to a hearing to discuss this matter. I am entitled, if I wish,

to be accompanied by another work colleague or my trade union

representative. Please reply within 28 days of the date of

this letter.

Yours sincerely,

**** ****

 

Many thanks!

[prushton]

Can you give me the details of your boyfriends contract of employment that he received from the company on the 17th September 2007 ? you can email them to me at [email protected] or copy them into your response as it will be quicker.

[prushton]

Prior to going into work on the day that your boyfriend informed his employer that he was unfit to drive as a result of caring for yourself did he inform his employer why and did he ask for time off to look after you ?

[prushton]

Here is a redrafted version of your letter, Ibelieve it covers all of the relevent points. just copy and paste into MS Word.

 

 

 

 

Dear Mr ****,

Grievance

 

I am writing to register a grievance regarding the circumstances that lead to my dismissal on the 29th January 2008.

I believe you are in breach of the terms and conditions of my employment, as set out in the terms and conditions of employment that I received from yourself on the 17th September 2007. You may recall that yourself and I signed the terms and conditions of employment at the time.

These terms and conditions form the contractual basis of my employment with the company. They contain the details of the company’s disciplinary procedures that would be followed should I find myself facing disciplinary action by the company.

Prior to my dismissal on the 29th January 2008 the only active disciplinary sanction in force was a first written warning issued on the 26th October 2007 for an unrelated incident regarding paperwork, that should have been submitted and wasn’t and this was in fact an error on my part as a result of deficient initial training when I started with the company.

On Tuesday the 29th of January at the end of my working day I was called to a meeting, of which I had no prior notification. On attending this meeting I was met by a panel of company representatives and told that “it was bad news” and handed a letter that indicated that the company were not happy with an incident that occurred the week before.

I took this to be when I informed the company that as a result of being up all night looking after my sick disabled girlfriend, for whom I am a primary carer I was unfit to drive the company’s vehicle. I attempted to explain this again, but it was clear the panel were not interested in my explanation. I was told to” hand in my keys” and that”I would not be needed back at work”.

The letter that I was given at the meeting on the 29th of January 2008 also stated that my employment would be terminated with immediate effect as I had allegedly received a previous final written warning. I have no knowledge of a previous disciplinary for which it’s alleged I received a final written warning.

I wrote to you on the 30th of January 2008 requesting a copy of my personnel file (which I am entitled to ask for and receive). This should contain the details of this alleged previous final written warning, details of the disciplinary hearing that should have been conducted at the time and a copy of the letter the company sent to me notifying me of the outcome of this disciplinary hearing.

To date I am still awaiting these details, the reason being is that I have never attended a disciplinary hearing where I received a final written warning and therefore could not have been sent a letter informing me of the outcome of such a hearing which you would be required to do if you had followed the correct procedures.

On the 29th of January the company summarily dismissed me as I had allegedly already been given a written warning, yet in a letter I received on the 31st January 2008 the reason given was that my employment was terminated while still in the probationary period after failing to meet the required standards of work.

You will agree that these are two conflicting reasons for my dismissal. The reason that the letter was sent on the 31st of January 2008 informing me that my employment was terminated while still in the probationary period after failing to meet the required standards of work is obvious, my letter requesting a copy of my personnel file on the 30th of January and a copy of the final written warning that I allegedly received has proved that no such final written warning was issued and there is now a need to cover all the angles.

In law there are only a few instances where an employee can be summarily dismissed, these are cases of “gross misconduct” or where a final written warning has been issued and is still valid and the employee fails to modify their behaviour. Acts considered to be gross misconduct should be detailed in the company’s disciplinary procedures.

I informed the company that I was unfit to drive that day as a result of being up all night looking after my sick disabled girlfriend, I did not go home but stayed at work and was available and willing to do other duties.

Under the Health and Safety At Work Act 1994 section 7 it states:-

7 General duties of employees at work

It shall be the duty of every employee while at work--

(a) to take reasonable care for the health and safety of himself and of

other persons who may be affected by his acts or omissions at work; and

(b) as regards any duty or requirement imposed on his employer or any

other person by or under any of the relevant statutory provisions, to cooperate

with him so far as is necessary to enable that duty or requirement

to be performed or complied with.

By informing the company that I was unfit to drive as a result of being up all night and having no sleep, I was fulfilling my legal duty to:-

(a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work

This in no way could be construed as gross misconduct; neither is there any final written warning in place.

In conclusion

The company did not follow its own disciplinary procedures as laid down in my terms and conditions of employment; neither did you follow the statutory minimum procedure for disciplinary action as laid down in the ACAS code of practice regarding dismissal. The ACAS code of practice states:-

26. It is important for employers to bear in mind that before they dismiss an employee or impose a sanction such as demotion, loss of seniority or loss of pay, they must as a minimum have followed the statutory dismissal and disciplinary procedures.

The standard statutory procedure to be used in almost all cases requires the employer to:

First formal action – unsatisfactory performance

19. Following the meeting, an employee who is found to be performing unsatisfactorily should be given a written note setting out:

• The performance problem;

• The improvement that is required;

• The timescale for achieving this improvement;

• A review date; and

• Any support the employer will provide to assist the employee.

20. The employee should be informed that the note represents the first stage of a formal procedure and that failure to improve could lead to a final written warning and, ultimately, dismissal. A copy of the note should be kept and used as the basis for monitoring and reviewing

Performance over a specified period (e.g. six months).

First formal action – misconduct

21. Where, following a disciplinary meeting, an employee is found guilty of misconduct, the usual first step would be to give them a written warning setting out the nature of the misconduct and the change in behaviour required.

22. The employee should be informed that the warning is part of the formal disciplinary process and what the consequences will be of a failure to change behaviour. The consequences could be a final written warning and ultimately, dismissal. The employee should also be informed that they may appeal against the decision. A record of the warning should be kept, but it should be disregarded for disciplinary purposes after a specified period (e.g. six months).

23. Guidance on dealing with cases of gross misconduct is provided in

Paragraphs 35-36.

Final written warning

24. Where there is a failure to improve or change behaviour in the timescale set at the first formal stage, or where the offence is sufficiently serious, the employee should normally be issued with a

Final written warning – but only after they have been given a chance to present their case at a meeting. The final written warning should give details of, and grounds for, the complaint. It should warn the employee that failure to improve or modify behaviour may lead to dismissal or to some other penalty, and refer to the right of appeal.

Dismissal or other penalty

25. If the employee’s conduct or performance still fails to improve, the

Final stage in the disciplinary process might be dismissal or (if the employee’s contract allows it or it is mutually agreed) some other penalty such as demotion, disciplinary transfer, or loss of seniority/ pay. A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will terminate, the appropriate period of notice

And their right of appeal.

26. It is important for employers to bear in mind that before they dismiss an employee or impose a sanction such as demotion, loss of seniority or loss of pay, they must as a minimum have followed the statutory dismissal and disciplinary procedures. The standard statutory

Procedure to be used in almost all cases requires the employer to:

Step 1 1 ION 1 – DISCIPLINARY RULES AND PROCEDURES

Write to the employee notifying them of the allegations against them

And the basis of the allegations and invite them to a meeting to discuss

The matter.

Step 2

Hold a meeting to discuss the allegations – at which the employee has

the right to be accompanied – and notify the employee of the decision.

Step 3

If the employee wishes to appeal, hold an appeal meeting at which the

Employee has the right to be accompanied – and inform the employee

Of the final decision.

28. If the employer fails to follow this statutory procedure (where it applies), and an employee who is qualified to do so makes a claim for unfair dismissal, the employment tribunal will automatically find the dismissal unfair. The tribunal will normally increase the compensation

awarded by 10 per cent, or, where it feels it is just and equitable to do so, up to 50 per cent. Equally, if the employment tribunal finds that an employee has been dismissed unfairly but has failed to follow the procedure (for instance they have failed to attend the disciplinary meeting without good cause), compensation will be reduced by, normally, 10 per cent, or, if the tribunal considers it just and equitable to do so, up to 50 per cent.

I believe that my dismissal was unjustified, at the very least I am entitled to one week’s severance pay in lieu of notice , any pay owed to me for work up to and including 29th January 2008 and payment for any accrued holidays. At best I would request reinstatement. I will give you 14 days from the date of this letter to respond and 28 days from the date of this letter to settle any monies due should you not reinstate my employment. I reserve the right to escalate this matter further.

I look forward to the company’s response regarding this matter.

Yours faithfully,

[M_A_A_B]

Thanks for all your help....just thought I'd give you a bit of an update as to what's going on now....

 

Hand delivered the grievance letter to bf's ex-work....received an acknowledgement letter a few days later...I guess thats them trying to cover the 'reply within 14 days' bit.....they have a bit more time left until the 28 days in which they have to take action is up....

 

It seems that all the passengers and some other staff are unhappy about bf leaving and now another member of staff has left too....

 

Once we get a proper reply from them we will seek further advice and I'll probably post on here to find out the best way to handle things next!

 

Good news is my bf has a new job that he starts tomorrow

[Sou1_2_Sou1]

...

Edited April 8, 2010 by Sou1_2_Sou1

[heathrow]

Where does the fine line between being fired and being made redundant occur? This is quite a complex story but I am hopeful somebody will stay with it and can point me in the right direction.

 

I was employed part time for more than two and a half years but during the last six months or so I felt I was being bullied and poorly treated by my line manager who I feel was trying to force me into resigning. After five months at the company they moved the work I was involved in from a purpose built facility to an off-site building that was dark, cold in winter, extremely hot in summer and was totally inhospitable. Although I did not have to work in the facility permanently, I did have to visit it most days that I was at work normally for an hour or so; towards the end for more than three hours at a time. In winter there was no heating and the temperature was sub-zero. I complained about the changed circumstances to my line manager but was told it was only temporary until a new building could be built. Subsequently promises were made but the facility remained unsatisfactory until I was informed I was to be made redundant. That very week work began on improving the facilities although I was told it was being outsourced. The temporary facility had remained for two years.

 

Prior to this about 60% of my work was transferred to another part of the company and removed from my responsibility. I was prepared to travel to the site and continue with this part of the job but was not given the opportunity.

 

I had various 'discussions' with my line manager because I considered the conditions I was being expected to endure were unfit but he refused to enter any debate and continued to order me to do work in the facilities that I felt were unreasonable, if not hazardous. My line manager has never supported me or been willing to discuss things and at times I was even required to bring in my own tools to make my job workable. During the last few months my line manager's attitude towards me had become completely hostile and he refused to discuss any aspects of my work in a reasonable way. I complained to HR although at that time I did not formalise the grievance. However, the day prior to my redundancy announcement I was again subjected to harsh treatment from my manager and was about to make the grievance official when I was told I was being made redundant.

 

I have been through the grievance proceedures with the company but feel this has been biased and has resulted in my redundancy being made official and because I was only part time I will come out with only just over £450 redundancy pay and four weeks salary. As I am 60 years old, finding alternative work is extremely difficult and I am now finding that I have not got sufficient money to live on and do not know how my wife and I will survive on the little she earns.

 

I have contacted the 'no win-no fee' lawyers but they will not consider the case because my salary is insufficient to cover their costs. I view this as highly prejudicial but I feel I have a genuine case against my former employers for bullying and wrongful redunandcy because my job has been passed to others in the company to do, and I feel that the company should pay me compensation.

 

Can anyone advise me what to do please?

 

One other question: I would like access to my HR file. This has been granted but I will need to go to the firm's offices to see it which obviously I am not keen to do. Does anyone know whether the Data Protection Act of the Freedom of Information Act gives me the right to request potocopies of the file sent to me?

Thanks.

[Bigredbus]

Hi 'Heathrow',

 

Would you mind copying the content of your post and create a new thread as you are in someone else's... LOL... it will, also, be easier for everybody to concentrate on your particular question, or questions... you would then have a thread of your own...

 

Thank you ever so much...

 

[heathrow]

Apologies ... can you guide me please

How do I start my own thread?

[heathrow]

It's okay ... I managed to work it out and have now started my own thread.

[Edders360]

Hi, I am interested to know the outcome of this. With best wishes.

[honeybee13]

Hi, I am interested to know the outcome of this. With best wishes.

 

Hello Edders and welcome to CAG.

 

You're posting on a thread that's four years old so I don't know if you'll have a reply.

 

If you have an employment problem, you could start your own thread and ask the guys here for some advice.

 

My best, HB