Dismissal with no prior warnings (Constructive / Unfair Dismissal ?)

[nickoxford]

I wonder if anyone can offer advice ?

 

My daughter (20) came home on Monday this week very upset having been issued with a notice of disciplinary hearing completely out of the blue.

 

She works in a pre-school nursery which is operated in an annex to the nursery owner's home. She took the job as Deputy Manager almost exactly a year ago as the owner was studying for the NVQ and could not run the nursery whilst she was studying. This may be relevant as the owner finished her course just before Christmas (Dec 2009) and we suspect that she no longer needs the same level of assistance and this is the motivation for the sudden issue.

 

The hearing was supposed to be around two issues

 

1) Alleged Racist remarks

 

The owner is a French Ex-pat and took offence to a comment she overheard between my daughter and another staff member about not liking one of the childrens dresses. It was alleged that my daughter said "..probably because it's French". She looked in the label and said, "... yes it is". The conversation was between two people but seems to have been overheard by the French manager.

 

Is that a racist comment ? If it is then I suspect we may have a problem with appeal. But if not then surely there is no case. My daughter assures e that there was nothing in it (not said "on purpose" to deliberately cause offense).

 

2) Alleged Rude / Objectionable Behaviour

Another overheard conversation between my daughter and a different colleague about having a pizza delivered to the nursery for a treat one lunchtime. The owner cut into the conversation saying that they could not do that. No pizza was ever ordered but at the hearing the owner said that my daughter was showing signs that she did not know the rules of the nursery about having unnecessary visitors. This was not pointed out at the time, only at the hearing.

 

Is there a case to answer here ?

 

Actually the whole hearing was a fiasco. The minutes clearly reflect that many other incidents were raised (none of which were listed in the notice of hearing) and some of which were not supported by facts, including an allegation that a parent took a child out of nursery because of my daughter and inviting my wife (also a childcare assistant who had previously provided cover at the nursery as a temp) to visit without permission. My wife dropped by unannounced (not invited) so my daughter never invited her at all.

 

Today she was dismissed. We are considering an appeal as the racist thing could cause a problem with future employment.

 

It is hard to see how a comment about disliking a childs dress because it was made in France qualifies as a racist comment. In the cold light of day I can see how it could be taken out of context if someone was LOOKING for something to complain about.

 

In the whole year, my daughter has never been disciplined informally or formally. No warnings. I can see that any charge of racism could lead to instant dismissal but I don't think that case is proven.

 

It seems that the punishment of dismissal doesn't fit the crime (if there even was one ?)

 

I would welcome some help on how to tackle an appeal.

 

How do you test for constructive dismissal ? is there a case here ?

 

Unfair dismissal? Obviously my daughter cannot go back there to work but she wants to clear her name. She is not so worried about compensation but if there will be costs to bring an appeal and perhaps a tribunal she will want to claim these if there is a decision in her favour. How does that work ? What should she be claiming.

 

Thanks for taking the time to read....

[Philip23]

Someone with some good knowledge I'm sure will come along soon and offer some advice.

 

In the meantime have a look at the ACAS site relating to unfair dismissal.

 

There is one thing I do know, your daughter needs to have been employed for more than 12 months. If it's less than this, then they can just terminate employment, and don't even have to give a reason.

 

The whole thing sounds dodgy to me, but I'm no expert.

 

Hope things work out.

[Bigredbus]

What are the written grounds for dismissal?

[nickoxford]

It's a good question. The dismissal letter says that the responses given at the hearing were unsatisfactory.

 

The two allegations were .... racist remarks against the owner and rude/objectionable behaviour

 

At the hearing, my daughter said that no offence or racial motivation was behind her remark about not liking the little girls dress (made in France) and said that she could not see any offence in just talking about getting a pizza delivered. The moment the owner said that it was she forbade that, my daughter acknowledged it and never ordered one or even spoke about the matter again.

 

She had been there 11 months and 2 weeks. Kinda coincidental that no reason is required for a dismissal if you have been employed there for less than 12 months. It stinks !

 

Surely my daughter has some rights (having been empoloyed for less than 12 months with no prior warnings) ?

 

Does her emploment length also affect her right to appeal / lodge unfair dismissal ?

 

It seems that there may even be grounds for constructive dismissal ? Firing her just before 12 months and coinciding with the completion of her course in December ?

 

It seems it is just my daughters word against the owner right now. The only thing reall going for us is that my daughter was well liked by both staff and the patrons parents. All have been shocked at the move.

 

I'd love to get some feedback on the legal status of this and some sense of whether we would be wasting our time with appeals and tribunals etc.

 

Thanks for the interest and responses so far . Keep 'em coming , i am still floundering on this one !

[elpulpo]

It does all seem very fishy, as you say. Looking for a reason to dismiss.

 

What time scale was there between the alleged incidents of misconduct, and the notice of disciplinary action?

Did your daughter have a written statement of particulars of employment?

Was she given notice or pay in lieu?

 

The lack of 12 months service could well be a sticking point, but let's have an examination of everything first and see how you can proceed.

As you say, having an accusation of racism hanging over her is very serious.

 

Constructive dismissal means resigning from one's job and then claiming that the employer effectively forced the employee to do so, so that's not relevant here.

Certainly worth putting in an appeal. How long before she has to get it in?

[nickoxford]

I the notice of disciplinary hearing was presented to her on Monday (1st Feb at 2pm) for a hearing at 2pm the following day (Tuesday 2nd). She was dismissed at 2pm on Thursday 4th and asked to leave premises at that time.

 

The events which were described in that notice of dispinlinary hearing were alleged to have happend the week before. My daughter remembers both conversations and is not denying that they happened (nor the timing). The "Pizza incident" does not sound like a dismissable offence but of course if the "French Dress" incident could be considered as racist the owner could have a case for instant dismissal.

 

But it seems to me that there is no clear indication that saying you don't like a dress "because it is French" is actually racist. It is a very tenuous accusation. With no opportunity beforehand to explain that there was no intention to cause distress or anything remotely motivated by racial thoughts, it seems that the owner was "searching" for reasons to assign to case for dismissal.

 

My daughter is on 1 weeks notice. Her pay statement was given to her with her notice of dismissal on Thursday and appears to be in order. She was paid for this Friday and Next Monday but 3 days were docked for days that my daughter could make it during the blizzards (they had planned a schedule of extra days over the coming weeks to straighten that out).

 

We have 5 working days to appeal and I am not sure how to proceed.

 

Forgive me for this one. I am not sure what a "statement of particulars of employment" is. Is that the contract of employment or something which would have been issued as a result of the hearing ? I feel sure she will have a written contract and we did get a document about what happened at the hearing. The hearing notes had some inaccuracies but we do not think anything relevent. The owner brought up a load of other claims at the hearing which were not mentioned in the notice of disciplinary hearing and so she declined to respond to any of those at the hearing.

 

Hope this fills some more gaps.. Thanks for your continued feedback.

[elpulpo]

Sorry, yes, 'written statement or particulars of employment' is a contract, simply put.

 

It's a bit of a sod, this one.

 

Your daughter's been treated very unfairly, in my opinion. I strongly suspect that there's been a conscious agenda on the part of the employer to dismiss her, not because of anything she's actually done wrong, but probably just the combination of the owner being now qualified and the fact she was close to completing 1 years continuous service.

 

As you say, it's potentially very damaging for your daughter to be accused of racism. To make a formal accusation on the back of what was an offhand, possibly snide, remark, is ridiculous. It warranted nothing more than, at most, an immediate verbal repremand. The same for the 'pizza' incident.

The problem is, with less than 1 years service, I can't see there's much she can do. You can perhaps make noises towards taking civil action for defamation, but I'm not sure if that would be practical. It tends to be 'The sport of Kings'. You'd need to seek legal advice.

I'd get a letter in requesting an appeal. Then write a strong statement to submit to the hearing. Go in hard, stating that you object to the accusation of racism most strongly, and make it clear that you intend to pursue any legal avenues neccessary. It might prompt them to agree, at least, to give an agreed reference.

[Bigredbus]

I am very much inclined to think along the same thread as 'elpulpo' as per the reasons to dismiss your daughter...

 

What is or is not offensive language can often depend on the sensitivity of the listener, thus have the comments made by your daughter clearly and objectively caused the owner offence?

[nickoxford]

Thanks Elpulpo / Bigredbus.

 

In response to bigred, It is hard to tell whether my daughter's remarks have REALLY caused offence, since we suspect the owner has a hidden agenda behind her dismissal. Is that sentence the "test" for a racist comment ? ....."clearly and objectively caused offence" ?

 

Follow up for elpulpo.... In the appeal request should we state the grounds for appeal ? If so, should that be unfair dismissal ?

 

Should we attend an appeal ? My daughter is not keen as the last one was such a fiasco. Will it harm her appeal if she does not attend ? Can she take someone with her ? is that limited (like the disciplinary hearing) to a colleague/ trade union rep ?

 

In the appeal letter (which I take it gets submitted after the appeal date is set) I guess I should use the terms in elpulpo's advice. Should we talk about our suspicions of motivation for dismissal ? What about the reference ? should we suggest a resolution ?

 

I am thinking that we could suggest a withdrawal of the allegations/dismissal notice, my daughters resignation and a mutually agreed reference which confirms her position and employment dates, something about her punctuality and care skills / popularity with the children and parents alike.

 

If this is agreed we would not further pursue the case at tribunal or in private litigation ?

 

Not really sure of the correct language with this, nor the right protocol.

 

I will be happy to take your suggestions.

 

Ever greatful.... Nick

[elpulpo]

The measure of an offensive remark should be whether or not it would reasonably be considered offensive. What would an impartial person think or what would the consensus be?

It's not good enough for someone to exclaim, "Well actually, I find that offensive actually!". That doesn't automatically make it so.

And in this case it seems to be an enormous overreaction, at least. Probably with the ulterior motive of wanting to have something to accuse your daughter of.

 

I'd state the full reasons for appeal in the appeal letter.

State that the accusation of racism are extremely damaging, not founded, that you suspect there is an ulterior motive behind the accusation and that you intend to pursue every neccessary avenue to refute the matter. Make reference to all the positive aspects of your daughter's service.

 

I wouldn't suggest the resolution yet. Put the ball in their court. You want to come across as saying, "So how are you going to sort this out? 'cos if you don't, you're getting sued." If they want to settle the matter, then you can propose the agreed reference etc.

Put everything you want to put across in the letter. Then, if an appeal hearing is convened, attend. But don't say anything. Just refer them to the letter.

She should be allowed to be accompanied by a colleague/trade union rep.

There is some recent caselaw that, if I remember correctly, stated that in a circumstance where an accusation against an employee could have a serious, long term effect on the person's reputation, then that person should be allowed to be accompanied by a solicitor. I'll have a look see if I can find it.

[elpulpo]

Refering to the solicitor route above, I doubt that that would be an option, having looked into it.

[Philip23]

I've subbed this thread as I want to see the outcome.

 

Pass on my best to your daughter Nick. My son was sacked for no reason, but this hasn't affected him getting another job. Having said that he was only employed for three months, as he's a student anyway, I told him to forget all about it on his CV etc. We still protect our kids no matter how old they are, and we need our experience of life when things like this happen.

 

Elpulpo - your advice has been great on this issue.

[Bigredbus]

In cases like your daughter's, problems tend to arise where language is said in 'jest' and I think your daughter did not understand or realise the potential offence that may have been caused.

 

I recognise that: a) the owner has a hidden agenda in which she intended to dismiss your daughter, and b) that the award is disproportionate in relation to the offence committed.

 

1. It might be beneficial for your daughter to attend an appeal where she can submit all the evidence, scaffolded by all the positive aspects of her daily work. She, then, can challenge the severity of the award...

 

2. She may be accompanied by a trade union official employed by an union, a lay official reasonably certified in writing by an union as experienced or having received training in acting as a companion in hearings or a fellow worker.

 

3. Unfortunately, she may not be accompanied by a lawyer/sollicitor. The question has been recently debated in a case against a NHS Trust.

 

4. In terms of reference, an employer who does provide a reference about an employee does so truthfully and in good faith. Employers have a duty of care... In Spring v Guardian Assurance Plc 1994, The House of Lords held that an employer owes a duty of care to an employee about whom he writes a reference. The employer’s duty is to take reasonable care in the preparation of the reference, and he will be liable to the employee in negligence if he fails to do so and the employee thereby suffers damage. In order to avoid claims in respect of an agreed reference, your daughter could ensure that the exact working of the reference is agreed and recorded in writing.

[Uncertain]

Did you confirm if she has "written particulars of employment" (contract)?

 

If so, it is well worth checking if it entitles her to more that one weeks notice (perhaps a month?). This would take her over the magic year as it has to be counted in the total except in the case of a valid instant dismissal.

 

If not, could you argue that this is an implied term if it is normal in the company? Or that it was agreed verbally in her case for certain reasons? How much notice would she have been expected to give if she had resigned?

 

Re the (sadly unusual) right to a solicitor. I think the case Elpulpo was referring to was a schoolteacher. If my memory serves me correctly a high court judge ruled that it was unreasonable of the school to refuse because of the potential long term consequences. Another option would be simply to turn up with one unannounced and see if they have the courage to argue the toss.

 

I would also be very tempted to secretly record the meeting. Contrary to popular opinion it is NOT illegal to record a conversation you are party to, even secretly. However you should not record what happens if you leave the room whilst they consider the matter. There is case law where such recordings have been allowed as evidence at ETs.

[nickoxford]

Thanks for all of the advice.

 

I have drafted a letter which says little more than "Please note my intention to appeal .... please notify me of any arrangements for a hearing". Is this enough ?

 

We have looked out my daughter's contract which highlighted 2 new points..

 

First, she received and signed an addendum on 19th October last year regarding.... wait for it..... yes...... disciplinary procedures ! Of course we never really saw anything coming but with hindsight we feel like we missed that one ! The addendum lists a number of reasons which might give rise to the need for disciplinary action. It outlines the disciplinary process (4 stages, the last of which is dismissal). It also has a single sentence on gross misconduct and reasons which may lead to dismissal. These include drunkenness, theft, drug-taking and child abuse.

 

Also her contract clearly states that the notice period is 8 weeks.

 

So, a few things come to mind from this. The business owner has not followed the procedure laid out in that addendum (Oct 09) which has 3 steps prior to dismissal.

 

In settling my daughters pay upto the end of last week does not seem to be in line with the contract of employment. Does this mean that the business owner HAS to pay her 8 weeks severence ? Whilst my daughter is happy about the potential of getting paid for another 7 weeks, she is really worried that the owner will expect her to WORK those weeks. This would be a disaster as she could really make life uncomfortable for my daughter. Can anyone help me with that one ?

 

For the appeal, I am working up a case centred around my daughter exemplary record. She is a hard worker who gets on well with children, staff and parents. She has been dependeable and has always completed her duties to the highest of standards with the welfare of children foremost in her mind.

 

We will make a case that the owner did not follow procedures that she has recently implemented and that the action taken does not reflect a fair approach to her first and only disciplinary complaint.

 

With respect to the individual allegations we will appeal that whilst we recognise that the comment about the dress being made in France may have been a little insensitive (should we say this ??) that it was neither racially motivated nor made with the intent to be discriminatory in an way whatsoever. Regarding the "Pizza incident", we would like to be very dismissive of this... nothing was ever done. We still fail to understand how "discussing something which may be against the rules" especially when she did not really think that it would be a problem could surely only ever qualify for the lowest level of disciplinary action / informal warning (even that would be harsh).

 

Any thoughts on this ? Did i miss anything ? Should I change tack on anything ?

 

In terms of the notice/ pay issue, I guess that should be tackled seperate from the disciplinary procedures ???

 

My daughter does not feel comfortable about recording anything at the appeal hearing. We are still discussing it between ourselves.

 

Many thanks again ! Nick

[Uncertain]

Very quickly, will look in more detail later.

 

The 8 weeks notice is great news. Only if there was true justification for calling this gross misconduct can she be sacked without notice. Otherwise they must give notice (or pay in lieu - their choice) and this takes her over the magic year.

 

(Even if it WAS GM they must still pay her for any holiday owing).

 

Do you have legal expenses insurance as part of you car or house policy?

 

TBC

[elpulpo]

You need to give a broad outline for the reasons of your appeal, at least. As I said before, I'd advise putting the full appeal in writing now.

 

Can I clarify a few things-

 

What date was she dismissed, and was she dismissed with immediate effect / given notice of termination on a certain date / given pay in lieu of notice?

When was she paid until?

 

This is important because depending on her 'Effective Date of Termination' she might qualify for 1 year's service = Able to take the matter to Employment Tribunal.

Edited February 8, 2010 by elpulpo

[nickoxford]

OK, I'll add in an outline of the reasons for appeal.

She was dismissed with immediate effect at 2pm on Thursday 4th. She was issued with a "final payslip" with the letter that informed of dismissal.

 

The wording (exactly from the letter) is ".....I have decided that dismissal is the appropriate action. This will take effect immediately and because of your length of service you will be paid one weeks pay in lieu of notice as per your statutory right and the ACAS Code of Practice."

 

None of the documentation received to date uses the term "Gross Misconduct".

[elpulpo]

Right. Well, if the employer felt the matter warranted dismissal with immediate effect there's no reason to pay in lieu of notice. So, if she's paying notice it should be the contractually agreed notice of 8 weeks, not just 1 weeks Statutory.

You've a claim (and I'd say it's an indisputable one) therefore, for the 7 weeks balance. Be it 7 weeks PILON or for your daughter to continue working there until the end of her notice.

Whilst I understand that your daughter doesn't want to set foot in the place again, if she could get the employer to agree to allow her to work her notice that would be to her benefit - that would take her over the 1 year qualifying period and she could then make an application to ET and claim Unfair Dismissal.

[ScarletPimpernel]

Surely the French are not a race, but simply a nationality? It seems to me that not liking the design of something because it is typical of its place of origin (or of its design, since we don't want to upset the Chinese) can hardly be construed as either, racist or offensive. If we took the point to its logical conclusion, could I be accused of being racist if I say that I don't like the look of the current Citroen range?

 

Further, can I sue the Scottish and Welsh Assemblies for pretending to be sovereign nations and failing to play the correct anthem at rugby matches?

[ScarletPimpernel]

Surely the French are not a race, but simply a nationality? It seems to me that not liking the design of something because it is typical of its place of origin (or of its design, since we don't want to upset the Chinese) can hardly be construed as either, racist or offensive. If we took the point to its logical conclusion, could I be accused of being racist if I say that I don't like the look of the current Citroen range?

 

Further, can I sue the Scottish and Welsh Assemblies for pretending to be sovereign nations and failing to play the correct anthem at rugby matches?

[elpulpo]

Discrimination on the grounds of national origin is included within 'race discrimination'.

I agree entirely though, SP.

[Uncertain]

Well if they have not used the words "Gross Misconduct" then I think you have got them!

 

They are obliged to give her eight weeks notice under her contract and this takes her well past the year. OK, they can opt to pay her in lieu of notice if they wish but that doesn't alter the timing for ET purposes.

 

The only way of them avoiding this would be to instantly dismiss for Gross Misconduct. If this was valid then they need not give any notice or pay in lieu but would still have to pay for any holiday due.

 

Given that they have not claimed it to be GM and have given some pay in lieu of notice then, basically, they have screwed up! I can't quickly see how they can wriggle out of that one.

 

None of this addresses the right and wrongs of her conduct and their response but does make it easier for you to take them to an ET if you wish.

 

I come back to this point later....

[nickoxford]

Thanks SP for your (somewhat light hearted) response. It is appreciated as we are having a tough time of things right now and it was good to smile briefly.

 

So should I raise this as a part of the appeal ? or is this a separate matter ?

[nickoxford]

BTW, could the owner subsequently claim that the (alleged racist) remark represents Gross Misconduct (even if that is never mentioned anywhere) ?

 

The reason I ask is because once we expose this error to her she almost certainly will look to backpedal. Is there a risk of that ?