Imminent Employment Tribunal hearing

[Fyffesy]

The fact that the employer failed to follow their own disciplinary procedure or the ACAS guidelines is absolutely watertight and the evidence appears several times within their documents and correspondence. However, their massively delayed and backdated witness statements have been cleverly written and makes their case for the dismissal being beyond reasonable doubt a strong one (although i've found a couple of minor contradictions in their statements).

 

Hopefully the tribunal will be gunning for the employer after she flatly refused to provide copies of the witness statements despite receiving two letters from the ET telling her to hand them over. Each time the employer replied by telling the ET that she had taken legal advice and been assured that she didn't have to hand the statements over until 7 days before the tribunal hearing. This hearing is next tuesday. I was trying to not give that away at the start of this thread but it's close enough to drop the cloak and dagger act now.

Edited February 24, 2010 by Fyffesy

[elpulpo]

What you need to show the ET is that not only did the employer not follow procedure, but because they didn't follow procedure they came to the wrong decision about your friend's guilt and whether or not it was reasonable to dismiss him.

 

Sadly, I don't think that the respondant's failure to disclose documents will have any bearing on the tribunal.

[Fyffesy]

Sadly, I don't think that the respondant's failure to disclose documents will have any bearing on the tribunal.

 

Surely the ET would want to base their own decison based solely upon the evidence which the employer took into consideration before dismissing the employee though? By failing to disclose these documents the employer has given herself the flexibility to do as she pleases regarding evidence. Particulary as she has been in possession of my friend's evidence in it's entirety for eight months and has now provided witness statements which are specifically designed to shoot down all claims made within his evidence.

 

The question must surely be "was the dismissal fair at the time of the dismissal?". I'm not doubting you elpulpo (your info has been very helpful) but I'm struggling to comprehend a situation where an employer can unfairly dismiss an employee but is then given 8 months to potentially fabricate evidence which will then be taken into consideration at the Tribunal Hearing.

 

If that's the case then I may have to put my head in the oven until the pain goes away

Edited February 25, 2010 by Fyffesy

[madari]

You will find that employment tribunals give a lot of leeway to employers and their business needs.....in other words unless your case is watertight they[the employers] can preety much do as they like when it comes to disciplinary and dismissal issues.

[Fyffesy]

You will find that employment tribunals give a lot of leeway to employers and their business needs.....in other words unless your case is watertight they[the employers] can preety much do as they like when it comes to disciplinary and dismissal issues.

 

So what is the point of companies having disciplinary procedures if they don't have to follow them? And more significantly, why do ACAS bother to set out guidelines if nobody cares if they are ignored?

[madari]

It is nothing to do with disciplinary procedures or Acas guidelines.....the bottom line is that if your face dosen`t fit then all the guidelines and principles dont mean a thing.

 

One further point, these solicitors and barristers are standing in front of the same judges on virtually a daily basis [they probably are drinking buddies for all you know], where as the employee is not even familiar with the surroundings on the day of the case.

 

Believe me i have been there.

[elpulpo]

Surely the ET would want to base their own decison based solely upon the evidence which the employer took into consideration before dismissing the employee though? By failing to disclose these documents the employer has given herself the flexibility to do as she pleases regarding evidence. Particulary as she has been in possession of my friend's evidence in it's entirety for eight months and has now provided witness statements which are specifically designed to shoot down all claims made within his evidence.

 

The question must surely be "was the dismissal fair at the time of the dismissal?". I'm not doubting you elpulpo (your info has been very helpful) but I'm struggling to comprehend a situation where an employer can unfairly dismiss an employee but is then given 8 months to potentially fabricate evidence which will then be taken into consideration at the Tribunal Hearing.

 

If that's the case then I may have to put my head in the oven until the pain goes away

Well yeh, so you need to concentrate on showing the tribunal that the Respondant didn't have sufficient evidence at the time of dismissal, and that the evidence that they've subsequently provided has been fabricated.

 

So, for example, you need to pay close attention to the fact that the respondant didn't give prior notice of the disciplinary hearing, didn't provide evidence at that time, etc. -all things that might lead the ET to consider that the respondant has made up evidence subsequent to dismissal merely to defend against your application to ET.

[elpulpo]

If you'd be happy doing so, it might be worth scanning the witness statements and posting them for us to have a read through. We might be able to find some 'holes'.

[Fyffesy]

It is nothing to do with disciplinary procedures or Acas guidelines.....the bottom line is that if your face dosen`t fit then all the guidelines and principles dont mean a thing.

 

One further point, these solicitors and barristers are standing in front of the same judges on virtually a daily basis [they probably are drinking buddies for all you know], where as the employee is not even familiar with the surroundings on the day of the case.

 

Believe me i have been there.

 

Sorry to hear you've had a hard time of it. At the end of the day all I can hope for is that my friend is lucky enough to get a fair hearing. He is a realist and he understands that a case such as his has a large grey area which could be interpretated differently from one judge to the next. It's a gamble but one he feels is necessary because the employers misinterpretation of events has left him with the stigma of a thief in the small village where he lives.

Edited February 26, 2010 by Fyffesy

[Fyffesy]

If you'd be happy doing so, it might be worth scanning the witness statements and posting them for us to have a read through. We might be able to find some 'holes'.

 

As this is my friend's case I think i should check with him first. To be honest, 4 of the 5 statements are brief and there are only minor errors in them. For example, one says he arrived at the pub at a certain time even though the till records show he arrived at least half an hour earlier. He says he witnessed the incident happen a few minutes after arriving even though the employer's boyfriend states that the incident happened half an hour later. I suspect the witness had been prompted into stating the incorrect time in order that it tallys with the employer's boyfriend's version of events. However, i would imagine that a judge would not expect a witness to be 100% accurate on times of incidents. Particularly because this witness had no idea he had seen anything suspicious until the following day.

Edited February 25, 2010 by Fyffesy

[Fyffesy]

I notice this thread has been read a huge amount of times. Can I just ask for a vote on what people think we should do based on everything you've read? The choice we have is to withdraw the claim for unfair dismissal on monday or take them on in what seems to be a 50/50 shot. I don't mind who you are or how many times you've posted before but i'd be really grateful for your opinions. So do we quit on monday (the day before the hearing) ? Deal or no deal?

[elpulpo]

Why quit now?

They've got no application for costs (have they?), you presume that they're representing themselves (and the guy's a putz). ET's hear cases day in, day out. If it comes down to a conflict of evidence, they'll tend to sniff out who's talking crap.

Far stranger things have happened than they'll get cold feet and come to a compromise agreement immediately before the hearing, or even half way through.

If you've got the time over the next few days (I'm in and out, a bit busy this weekend and Mon), I'll go over how you're intending on presenting your case with you.

[madari]

Under no circumstances QUIT now, at the end of the day even if you lose it will still cost your ex employers to defend your claim.

 

They might even make you an offer to makeyou go away, and it could cost them less to pay you off then fight the case.

 

They may even offer you your job back.........Keep fighting as all is not lost yet.

 

Remember no employer likes the fact that they have had an employment tribunal claim made against them.[it is a black mark on their business]

 

Let us know how you get on....Good luck and i repeat DO NOT GIVE UP.

[Fyffesy]

If you've got the time over the next few days (I'm in and out, a bit busy this weekend and Mon), I'll go over how you're intending on presenting your case with you.

 

I appreciated the offer but I thought I should spend the entire weekend familiarising myself with everything.There was a lot to go through and preparing the bundle was time consuming in itself. I had taken on board the things yourself and Madari had said and in the end I think I did a reasonable job at the hearing on Tuesday. I was certainly more prepared than the other side anyway.

 

Basically we won our case but it really was by the skin of our teeth and it came down to 3 factors.

 

1) The judge agreed that the employer had shown that they had the belief (beyond reasonable doubt) that gross misconduct had occurred. Although the judge did stress that this doesn't necessarily mean my friend was guilty of the accusations.

 

2) The judge agreed that the employer did not follow their own procedures at all. He actually seemed very cross with the employer when he interrupted my cross examination when I highlighted this.

 

3) Now this is the area I really don't understand. You could say that at this point the score was 1-1 and this was extra time. The judge mentioned a couple of things but it seemed to me he had made his decision based upon the conduct of both parties. I had highlighted their refusal to cooperate etc but I don't know if this was what the judge was talking about.

 

Anyway, we won- to a certain extent.

 

The judge decided that as my friend hadn't himself strictly behaved in accordance with grievance procedures shortly after the dismissal so he effectively reduced the award to zero.

 

However, as we'd established that the employer hadn't provided my friend with a written contract, the judge awarded 2 weeks wages to my friend.

 

Also, during cross examination i had also shown that the employer hadn't obtained any witness statements until 5 weeks later. The Judge said that only when these witness statements were obtained was the employer in a position which could be described a beyond reasonable doubt. So the judge awarded 5 weeks wages to my friend as well.

 

Overall the employer now owes my friend around £800.

 

Our schedule of loss was just over two thousand but the money was never an issue for my friend and I was just pleased to get out of there with the unfair dismissal ruling.

 

I can't thank elpulpo enough. Your insight into how the whole thing works was incredibly helpful. I was able to prepare questions specifically designed to tackle certain points which I absolutely never would have even considered without this advice.

 

For example, whilst the employer turned up simply trying to prove the theft, I was able to concentrate on trying to disprove they were beyond reasonable doubt. Granted, the Judge agreed with them but I visibly unsettled the employer and her boyfriend who expected to just show documents to prove my friend's guilt.

 

The whole thing lasted 4 and a half hours and I can honestly say that because of elpulpo's comments, nothing took me by surprise during proceedings. I think the Judge was well aware that I had done my homework and he knew what I was trying to achieve with my cross examination.

 

The look on the employer's face was incredible when I asked "I notice you haven't included a copy of your disciplinary procedure in your bundle. Can I ask you to turn to it on page 11 of our bundle. So Mrs xxxxxxx, do you believe you have complied with your own company's disciplinary procedure?"

 

And it was also very enjoyable when the guy who chaired the appeal read out his report then awaited my first question.

 

I asked "in paragraph two of your report you state blah blah blah blah blah.

 

He interrupted before I had finished reading the third line and said "I didn't say that".

 

I said "ummmm, Mr xxxxxxxxxx, you just said it 3 minutes ago and it's written in your report which we all have copies of".

 

Anyway, we won- just.

 

Thanks again for the help. Please feel free to ask anything if you're awaiting your own hearing. I think I have been able to learn a lot and I am more than willing to offer some hints and tips based on my own experiences.

[elpulpo]

Grand. I was wondering how you got on, thought it might be bad when you didn't post yesterday.

In the rough old seas of the ET, I don't think it's a bad result at all.

Good that you grabbed the 2 weeks for no T&C's.

Now you've got to get the money out of them. Can be a whole new battle.

Well done anyway.

[Fyffesy]

Well I'm told it can take up to 6 weeks before the judgement is sent out and they then have 42 days to cough up after that.

 

I didn't post yesterday because I quite frankly needed a few pints at the end of this. Cheers again though. I would've gone in there with the completely wrong questions in mind if you hadn't opened my eyes to the fact it's not really about "did he or didn't he commit the theft". It's a lot more complicated than that and I firmly believe we won because you alerted me to what the judge actually wants to hear.

[elpulpo]

Ah stop it. You've obviously got something about ya to have pulled it off. I didn't want to worry ya, but ET's are notoriously unpredictable. You can go wrong so easily for no good reason. Like ya said, the respondant probably pee'd the ET off a bit before the hearing even happened.

Brace yourself for getting the money out of them. The ET doesn't have any power of enforcement, as I understand it. If they just don't pay, you've got to start all over again and drag it through the small claims court. It can take several months. Hopefully it won't come to that.

[honeybee13]

Well done Fyffesy [and Elpulpo], I'm very pleased for your friend.

 

Fyffesy, I hope you stay around and help with other ETs. You and Elpulpo will be pretty fearsome!

 

My best.

Edited March 4, 2010 by honeybee13
typo

[Bigredbus]

Well done...

[madari]

Well done....and now go study the Employment Law....L.O.L........!!!

[Fyffesy]

I must admit that this has been an obsession for me for the last 6 months. 50% was due to my absolute belief that my friend was innocent and 50% was due to the employer's horrible arrogance.

 

The end result is that I know a lot more than I did when I started this. I spent months researching and I was pretty sure I had it all sussed. But in the end I (thankfully) decided to ask you guys what you thought. The end result was that I dealt with the hearing on a completely different angle than I intended to.

 

I was well aware of this site because I personally had an unrelatred court case a while ago (which I won with the help of these forums) but I felt it was important to gain an understanding of how a case like this works before I threw it open to you splendid people.

 

I haven't got the confidence of elpulpo and bigredbus when it comes to handing out advice but if anybody wants my opinion-I'm more than willing to help.

 

Cross examination and preparation are my strengths I think. Obviously hindsight is a wonderful thing and I've spent the last two days thinking "I wish I'd said.........this that and the other".

Edited March 7, 2010 by Fyffesy

[Fyffesy]

Thanks for the congratualting messages by the way. They all mean a lot to me.