Disciplinary Hearing Next Week - please help!!

[mariefab]

What exactly does it state in his contract about notice to terminate employment?

[mariefab]

So, according to his contract terms, he was only required to give eight weeks notice.

 

Frankly I think that it would foolish of his boss to leave himself open to a possible tribunal claim by taking disciplinary action against an employee who is alredy leaving.

 

Perhaps your husband could suggest amending his notice to the contracted eight weeks notice instead. (Unless this would be inconvenient, considering your moving plans.)

[mariefab]

Did your OH give his notice in writing?

If so, does he have a copy of his letter of resignation?

[mariefab]

Or, you could send an appeal letter saying...

 

Dear ?,

 

I have received your letter confirming the decision to dismiss me on ??/10/09.

 

I would like to appeal this decision based on issues with regard to the reasons for my dismissal.

 

I would appreciate a prompt response to this request.

 

Yours etc.

 

At the appeal meeting I would suggest that you start with the following questions and statement.

 

Do you acknowledge that:

 

1. I handed in my resignation, giving 12 weeks notice, on ??/??/09?

2. Between ??/??/09 and ??/??/09 2 new chefs started work?

3. At a meeting on ??/??/09 you asked me to agree to cut short my notice?

4. You told me, at that meeting, I could either sign a letter to agree to cutting my notice or you would "find someone" to say that I was running the kitchen poorly and would therefore be sacked?

 

I believe that you used the disciplinary procedure dismiss me in order to avoid paying me for my notice period.

[mariefab]

Yes, but make sure to send the follow-up copy by recorded/special delivery.

[mariefab]

I'd leave out this sentence....

 

In fact I believe the letters and meeting to be the conclusion of a constructive and totally unfair dismissal. I intend to appeal and I am seeking legal advice to support my appeal.

 

...because:

 

1. 'constructive' Constuctive dismissal is when an employer's actions cause one to resign and he'd already resigned prior to the disciplinary procedures.

 

2. 'totally unfair dismissal' Unfair dismissal is for a Tribunal to decide and until such a time it's only an opinion. (Although a justified one, in my opinion)

 

3. 'I intend to appeal' You've already stated you are appealing the decision.

 

4. 'I am seeking legal advice to support my appeal.' You are under no obligation to warn them that you are taking advice. Giving them a heads up on this can only be to their benefit.

 

Also, I'd change, 'patience in' to 'attention to', simply because I don't think they've been particularly patient so far.

[mariefab]

He is entitled to be paid for any untaken holidays due, see link below.

 

Statutory Instrument 1998 No. 1833

 

On the matter of paternity leave, does he have any evidence that he asked his employer for this?

[mariefab]

Some info. on paternity leave here:

 

Taking your paternity leave and pay : Directgov - Parents

[mariefab]

I would, to be on the safe side.

 

Take 2 copies and ask whoever you hand it to to sign and date your copy so that you have a receipt.

[mariefab]

Just re-read this and noticed that you asked earlier if he should be paid for the 2 weeks while he was suspended.

 

Yes he should, unless it clearly states in his contract of employment that he will not be paid while suspended.

 

Please update the thread when you receive a response to the appeal request.

[mariefab]

Also it mentions in one of the statements regarding food labelling that it was dangerous for food in the freezer not being dated, but surely by the nature of freezing the food it ensures it would not go off ???

 

Sorry, but all the food in the freezer should be dated. That said, failing to do so in one instance should only lead to a reminder of food safety training. Repeated instances could lead to a written warning.

 

I'm afraid that when I have previously advised people that they were not required to give grounds for an appeal I was wrong (although thankfully none of the previous employers appear to have realised this).

 

I've discovered that it's written in the ACAS code that, 'Employees should let employers know the grounds for their appeal in writing'.

 

I suppose that different employers would require varied levels of detail, but I think in your case Mr Clever will obfuscate and delay until he has wrung every last morsel of information from you before scheduling the appeal. So, perhaps it would save time to just let him have it.

 

How about......Cover letter, amend as you wish:

 

Dear........

 

Thank you for your letter of ??/10/09 in which you state your happiness to arrange an appeal meeting.

 

I am bemused that you have asked me to provide you with specific written details of the issues I have with the reasons for my dismissal, for your consideration in advance of the appeal, as I thought that it was the purpose of the appeal meeting itself for me to present my case on why I feel the decision to dismiss me should be overturned.

 

However, I am happy to comply and enclose the information requested.

 

I would appreciate a date for the appeal meeting as soon as conveniently possible.

 

Yours etc.

-------

 

ISSUE 1.

 

I believe that you used the disciplinary procedure to dismiss me simply in order to avoid having to pay me to work the rest of my notice period.

 

On ??/??/09 I handed in a letter giving what I understood from my contract to be the required 12 weeks notice to terminate my employment.

 

While I was working my notice 2 new replacement chefs were hired.

 

With ? weeks notice remaining I was called to a meeting on Monday ??/??/09. At that meeting you told me that I could either accept £? and sign a letter agreeing to cut short my notice period or you would find someone to say that I was running the kitchen poorly and I would therefore be sacked.

 

Acting on advice from ACAS I sent you an email on ??/??/09 to say that I didn't accept your offer and that I would be attending work as usual on Wednesday ??/??/09.

 

Upon my arrival on ??/??/09 I was duly presented with a letter informing me that I was suspended on full pay whilst concerns that had come to your attention were looked into.

 

Later that day a colleague delivered another letter including; the information that a disciplinary hearing would take place on ??/??/09, a statement of the grounds for the disciplinary procedure, 2 statements from new starters and a statement from a long-standing team member.

 

The disciplinary hearing took place as arranged and you dismissed me; thereby carrying out the threat made at the meeting on ??/??/09.

-------

 

I'll spend some time with the Food Act and the Food Hygiene Regulations over the next day or two so that I can compose ISSUE 2, which I hope will trash his statement of reasons for dismissal.

[mariefab]

Best to send it all in one email I think. I should have isssue 2 done by tomorrow.

[mariefab]

Can you post what he was doing to try to sort the blast chiller out himself please?

 

Kudos to your OH for his 92% GP, by the way, the best I ever managed was 87% (for which I scored a considerable bonus because my target gp at the time was only 75%).

[mariefab]

Ha! So I win with my 87%.

(It was only achieved once though in a month that was heavy with corporate and private buffets, I usually averaged 74- 76%)

 

One last question. Can you tell me as much as possible about the cleaning schedule and anything else relevant to cleaning?

[mariefab]

So that you can copy & paste it in one go I've put the whole thing in this post. I've left the dates for you to fill in, amend the rest to suit. Hope this helps.

 

Dear........

 

Thank you for your letter of ??/10/09 in which you state your happiness to arrange an appeal meeting.

 

I am bemused that you have asked me to provide you with specific written details of the issues I have with the reasons for my dismissal, for your consideration in advance of the appeal, as I thought that it was the purpose of the appeal meeting itself for me to present my case on why I feel the decision to dismiss me should be overturned.

 

However, I am happy to comply and enclose the information requested.

 

I would appreciate a date for the appeal meeting as soon as conveniently possible.

 

Yours etc.

-------

 

ISSUE 1.

 

I believe that you used the disciplinary procedure to dismiss me simply in order to avoid having to pay me to work the rest of my notice period.

 

On ??/??/09 I handed in a letter giving what I understood from my contract to be the required 12 weeks notice to terminate my employment.

 

While I was working my notice 2 new replacement chefs were hired.

 

With ? weeks notice remaining I was called to a meeting on Monday ??/??/09. At that meeting you told me that I could either sign a letter agreeing to cut short my notice period or you would find someone to say that I was running the kitchen poorly and I would therefore be sacked.

 

Acting on advice from ACAS I sent you an email on ??/??/09 to say that I didn't accept your offer and that I would be attending work as usual on Wednesday ??/??/09.

 

Upon my arrival on ??/??/09 I was duly presented with a letter informing me that I was suspended on full pay whilst concerns that had come to your attention were looked into.

 

Later that day a colleague delivered another letter including; the information that a disciplinary hearing would take place on ??/??/09, a statement of the grounds for the disciplinary procedure, 2 statements from the new starters and a statement from a long-standing team member.

 

The disciplinary hearing took place as arranged and you dismissed me; thereby carrying out the threat made at the meeting on ??/??/09.

 

While I appreciate that with 2 new chefs already in place you wished to save wages costs, it would have been more appropriate to negotiate a payment in lieu of notice with me than to abuse the disciplinary process in this manner.

-------

 

ISSUE 2.

I don't believe that the incidents outlined in the dismissal letter amount to Gross Misconduct.

 

Once the opinions and speculation are stripped away, what remains are relatively lesser infringements that should not justify dismissal.

 

1. Starting the blast chiller by inserting a metal implement into it and the health risk if the chiller did not work.

 

The metal implement was a temporary measure, used while I was getting quotes for a permanent solution, and was achieved by a worker who I was informed was a qualified electrician.

 

If I had believed that the blast chiller's condition represented a risk to health and safety I would have raised the issue with the chef who was trained and designated as the kitchen's health and safety rep.

 

A non-working blast chiller doesn't necessarily represent a health risk. There are other acceptable methods of safely reducing food temperature prior to refridgeration. Depending on the type of food some examples are: Refreshing food with cold running water. Placing food in a sealed container and then placing the container in cold water. Covering food and leaving it to cool.

 

2. Food not correctly labelled.

 

All trained food handlers should be aware that food needs to be labelled.

 

As the last date that I was in the kitchen was ??/??/09, I am unable to confirm or deny whether any food was unlabelled on the date of your complaint.

 

Had I been aware that food was unlabelled I would have initially reminded all staff of this food safety requirement and then checked regularly to make sure that this was done. If I discovered further instances I would have considered whether re-training or first stage disciplinary action would have been appropriate.

　

3. Inadequate cleaning standards.

 

In the 5 years that I worked for you no one ever described the level of cleanliness in the kitchen to me as inadequate until after I was suspended.

 

When I last worked in the kitchen, the chef's cleaning schedule was up to date and being adhered to.

 

If you had concerns about the level of cleanliness in the kitchen you could have discussed them with me on any of your frequent visits to the kitchen.

 

On every occasion that an EHO has visited the kitchen they have been very pleased with the standards.

-------

　

ISSUE 3.

 

In the conclusion of the dismissal letter you state, " I am afraid that when taken as a whole, the issues above demonstrate a complete failure by you to adequately and appropriately perform your role, and i am afraid i have no choice but to find that this is gross misconduct, As a result I can confirm that your employment will terminate with immediate effect."

 

This suggests that you felt that you had no choice but to dismiss me.

 

In fact, you had several other choices ranging from verbal to final written warning; none of which appear to have been considered.

 

At no point does it seem that my 5 years of good service have been taken into consideration.

 

In those 5 years I have only had one verbal warning (as part of the whole team). This was a long time ago on issues unrelated to the concerns outlined in the dismissal letter.

 

Although the dismissal letter makes it clear that other staff have commited the infringements that I have been dismissed for; to date, as far as I am aware, no one else has been disciplined or dismissed.

This demonstrates a lack of consistency in your disciplinary procedures.

[mariefab]

Unfortunately, I don't think that he would be allowed to take along someone who wasn't either a work colleague or a union rep. unless his boss OK'd it in advance of the meeting and it seems unlikely that this employer would agree to such a request. However, as the latest response says that the appeal will be chaired by himself, it's possible that someone else will be present on the employer's side.

 

 

Was there someone taking notes at the disciplinary meeting? If not, his boss could claim that there are no notes but that his dismissal letter summarised what took place.

 

In view of how this employer has conducted himself so far, it might be an idea to covertly record the appeal hearing and decide later on whether or not it would be appropriate to use the recording.

 

Have a look at the link below, it was posted by someone else on another thread on here a while ago.

 

Covert recordings of Disciplinary Meetings with an Employer | Lawyer Help Covert recordings of Disciplinary Meetings with an Employer school, dogherty , disciplinary, tribunal, covert hearings recordings , panel deliberations, employment, appeal , he

[mariefab]

Ooh! While we're on the subject of H & S, by any chance did the kitchen's Health & Safety rep. ever use the 'metal implement' himself?

[mariefab]

For now your OH could follow up on Andie's idea to discover whether any notes of the disciplinary meeting exist.

You could send a polite little email;

Thanking him for his latest letter, confirming that your OH will attend the appeal hearing and asking if would be so kind as to forward copies of any disciplinary hearing notes in advance of the appeal hearing.

 

Rebel's secret weapon has given me a devious idea, I'll get back to you later if it checks out.

[mariefab]

Final thoughts:

Health and safety regulations require that IF you had believed that the blast chiller represented a serious and immediate danger to health and safety you should inform your employer or any other employee of that employer with specific responsibility for the health and safety of his fellow employees.

Since the health and safety rep. himself was happily using the metal implement to operate the chiller you had no reason to believe that it was unsafe.

 

I had a chat with a friendly EHO who said that, no matter who the duties are allocated to, the responsibility for ensuring that cleaning standards are adequate lies with the proprietor of an establishment.

Also, that the labelling and cleaning issues described would, at the very worst, result in an improvement notice.

 

Good luck! I hope that you get; the dismissal overturned, the notice pay to which you are entitled and a couple of copies of a very good reference.

[mariefab]

Did the hotel proprietor ever get in touch with your OH again after the appeal hearing?

For example, a letter/email saying that he upheld the original decision to dismiss.

[mariefab]

Yes, photobucket does work on here.

 

If you scan and post the whole letter make sure that you obscure any names or other identifiers.

 

I think that the only thing that you can do now is make an Employment Tribunal claim for unfair dismissal.

Please note that the clock is running out on this because you only have 3 months less one day from the date of dismissal to do this.

If I remember correctly this will need to be done within days.

[mariefab]

What exactly is your OH's arrangement with ACAS?

Has he received any documentation from them at all?

 

If you haven't heard from ACAS for 7 weeks I would suggest that perhaps your OH's ex-employer is either not answering ACAS or is stringing them along and delaying things until 13th January passes (after which you will not be able to make any kind of Employment Tribunal claim).

[mariefab]

So we start ringing round solicitors monday asking if anyone can hear our claim and disregard acas?

 

There's no time for solictors now. The form needs to be received by the Employment tribunal on or before 13th January.

Your OH can start an Employment tribunal claim himself by completing and submitting the online ET1 form.

The form and guidance are in the links below.

 

http://www.employmenttribunals.gov.uk/Documents/FormsGuidance/newforms/ET1-version-18-11-09.pdf

 

http://www.employmenttribunals.gov.uk/Documents/FormsGuidance/09_1177_MakingaClaim.pdf

 

I would suggest that the claim should be for unfair dismissal and breach of contract.

Shout if you need any help.

[mariefab]

Of course I don't mind, pm ahead.