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Unfair Dismissal - Urgent advice need - please help


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Hello,

 

I really need the advice of you great people!

 

Sorry if I ramble in this post but I'm just so stressed I'm not sure how much more I can take :Cry:

 

I've worked as a client account manager for the past 8 years and have never had any previous warnings at work. The work is exremely stressful and for the last two years I've found it very difficult to cope with. About 18 months ago it got so bad that I had to see my GP who arranged counselling for me as I was suffereing with panic attacks, insomnia, alopecia and depression. As I wasn't thinking staright I never told my boss as I thought I would lose my job, however as my employer would have been able to see my hair was falling out I'm sure he would have known something was wrong especially as they were aware some of the peole we work are very intimidating and quite bullying. All this was having a serious affect with my relationship with my husband.

 

My work started to suffer about 12 months ago, I got behind in keeping some of the ledgers up todate, At the same time I was being over loaded with work, having to help other employees out with there work etc.

 

Finally in August I suffered a breakdown with my GP signing me unfit to work. After a couple of weeks I got a letter from my employer saying they are going to investigate as some issue surrounding my work have come to light and what may happen when the investigation is concluded. I was then invited to a hearing, which I went to. They were accusing of not keeping some of the ledgers up to date, and a few other things that were not strictly true and in my opinion they had just tried to pick up things that they could try to use to sack me. I was advised that I was being sacked for gross misconduct and that I was not getting any noticed, I haven't been paid my holiday pay either. Now I think this is extremely unfair as I've had a very good employment record with them. I also know for fact that other employees, one of which I worked on correcting there work as it wasn't done fr the past couple of years wasn't sacked, in company even tried to get him to stay when he resigned. Do you think I have a case for unfair dismissal.

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It is impossible to say whether you have a case or not - the best we can do is tell you what isn't relevant or what may be. If you don't know whether you have acse or not you need to seek legal advice and do it quickly because you only have three months less a day to make a claim, and time is fast running out.

 

Set aside whether your employer should have guessed what was happening or not - if you did not tell them that you were suffering from stress and that it was caused by your work (which to be honest, would be hard to prove anyway, even if you had told them) then you can't really use this as evidence of anything. You could have been stressed for any reason whatsover, and belatedly claiming that it was work-related is of no practical use to you. Nor is it particularly of any relevance to the matter over which you were dismissed - it does not provide a reason for the alleged misconduct, but a mitigation, and tribunals do not consider mitigation. Nor is your length of service relevant - again this is mitigation, and will not be considered. Just because you haven't done anything wrong in 8 years is no cause to say that you should not be dismissed for having done something wrong in your 9th!

 

Basically they have only two interests - did you do what was alleged (or did the employer have cause to have a reasonable belief that you did); and was dismissal within the range of outcomes which a reasonable perosn would consider? Now on the first one, I am assuming that you did in fact do what you were accused of. You have not disputed that financial records were not up to date; and the claiming that the "few other things" are not "strictly true" is not a staggeringly convincing denial of guilt. If this is the case, then the remaining question is whether these things could result reaosnably in dismissal for gross misconduct - and in terms of any financial matters, it is certainly possible that it could - although there isn't enough detail to say that it is definite. Obviously, it's impossible to say also whether the "other things" could have resulted in dismissal, but as a totality if there were several allegations upheld against you then again, dismissal may be a fair outcome in law.

 

Generally, if you have a case, it would be rather weak if my assumptions about the allegations being "true or true-ish" are correct. The only issue this does not address is process and whether the rpocess was carried out correctly, including advising you of your right to be accompanied, etc. You haven't mentioned these things.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Thanks for the reply SarER.......

Yes you are correct in the fact that I didn't keep some of the ledgers up to date, the other things that they are accussing me of not doing are:

 

  • apparantly I was asked to stop a monthly report, however they don't have any evidence of this and I totaly believe they never asked as they have always emailed me such requests and then would chase up if I hadn't confirmed by email.

 

  • I was accused of being told a procedure I was using was wrong time & time again, however I had never been giving a verbal or written warning.

 

  • Being accused of mistakes that I haven't even made, as I'm off ill and not able to help it's my fault.

When I was signed of ill my employer spoke to my husband and admitted he new what was wrong me. The main reason I think this is unfair and why I'm so angry is that I'm being treated different to other employees, for example one employee had produce incorrect reports dateing back several years, hadn't followed any of the company procedures and nearly all the ledgers hadn't been kept uptodated for at least 2 maybe 3 years. Not only was he not sacked for gross misconduct, when he handed his notice in the company tried to get him to stay. I know I fell behind in my keeping one of the ledgers updated, (3 months behind) this was mostly due to the fact that I was updateing and correcting all the my other colleagues work.

 

Why am I being treated differently, I strongly believe it's because I was signed of sick from work

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The issue you will have here is proving what you say.

 

Thanks for the reply SarER.......

Yes you are correct in the fact that I didn't keep some of the ledgers up to date So this is true, and that may be consdiered grounds for gross misconduct alone., the other things that they are accussing me of not doing are:

 

  • apparantly I was asked to stop a monthly report, however they don't have any evidence of this and I totaly believe they never asked as they have always emailed me such requests and then would chase up if I hadn't confirmed by email. But given that there are parts of your job that all agree were not done up to date, how would you prove this isn't true? Can you produce the e-mail "normally sent" to you? You are trying to prove a negative - that they didn't ask you this - in a context where it is agreed that at least one important part of your job wasn't done. The employer does not have to prove you didn't do it - just that there is reasonable belief that you didn't. It wasn't done, and other parts of the job weren' t done, ergo.... Do you see where I am going with this? Not taking sides here - just pointing out the weakness of your version of events in the context.

 

  • I was accused of being told a procedure I was using was wrong time & time again, however I had never been giving a verbal or written warning. Same applies. Slightly better for your side because you should have been warned formally - but obviously I haven't heard their side, and I bet it will explain how they didn't want to give you a warning and hoped you would get it right if they kept telling you, and only when they realised about the other stuff did they realise how very serious the situation was.

 

  • Being accused of mistakes that I haven't even made, as I'm off ill and not able to help it's my fault. Sorry - I don't follow this. Are you saying that the mistakes were mage whilst you were off ill?

When I was signed of ill my employer spoke to my husband and admitted he new what was wrong me. Your husband of course is a hugely impartial witness . So when the employer gives evidence he will admit to the conversation? The main reason I think this is unfair and why I'm so angry is that I'm being treated different to other employees, for example one employee had produce incorrect reports dateing back several years, hadn't followed any of the company procedures and nearly all the ledgers hadn't been kept uptodated for at least 2 maybe 3 years. Not only was he not sacked for gross misconduct, when he handed his notice in the company tried to get him to stay. I fully understand and sympathise. But again - you can't prove any of this. It is your say so - and when the employer denies it, what will you produce to prove otherwise?

 

I know I fell behind in my keeping one of the ledgers updated, (3 months behind) this was mostly due to the fact that I was updateing and correcting all the my other colleagues work. Again - how will you prove this?

 

Why am I being treated differently, I strongly believe it's because I was signed of sick from work Quite possibly - but the substance of the main allegation is true, so the employer had grounds for a disciplinary on this matter, so an argument that the disciplinary was only held because you were off sick will not hold much water

 

I am not at all unsympathetic to what you have to say, not do a disbelieve you. I have heard it many times before. But a tribunal won't be sympathetic. They will be strictly neutral, and you will have to shift them from that position by proving what you say. And the problem is that you cannot prove most of what you say, and what you can prove is dubious at best, because I can see a strong likelihood of a tribunal agreeing that the main allegation (of not keeping the ledger up to date) is serious misconduct on its own.

 

Also, and please forgive me for saying this - but you had a nervous breakdown very recently. At the best of times, and with the best of cases, tribunals are very stressful. Depending on where you live it could take 6 - 9 months or even longer to get a case to hearing. Throughout that time the employer will, quite lawfully, get very nasty. If you think they haven't been nice up to now, you really haven't seen anything yet. And given the circumstances of the dismissal you may seriously struggle to get a solicitor involved, although even they cannot shield you totally from this. I have seen very strong and stable people reduced to the verge of a breakdown by the process. And I have to ask you to consider whether you are strong enough to start this, with a very shaky prospect of winning anyway?

 

Since I am a lawyer - and therefore paid to deal with the stress of such processes - I'm not in the best position to do anything other than tell you what I observe, but there are others here who have done, or are doing it, with or without a lawyers help, and they may be able to give you a more personal view of this.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Thanks for the feedback, certainly food for thought..............

 

Some of the stuff I mentioned above I am able to prove, especially concerning the employee who resigned and was not sack as I was a witness to this and have copies of the email between the company and ex employee.

 

I guess I need to think long and hard about what steps I next take

 

PS.Are the company alowed to withold holiday payment which has been acrued throught the year as I haven't been paid for this?

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Thanks for the feedback, certainly food for thought..............

 

Some of the stuff I mentioned above I am able to prove, especially concerning the employee who resigned and was not sack as I was a witness to this and have copies of the email between the company and ex employee. I'd be very surpised if it said that he had producde incorrect reports dating back several years, hadn't followed any of the company procedures and nearly all the ledgers hadn't been kept uptodate for at least 2 maybe 3 years, but they wanted him back. It certainly may say that he had resigned but they wanted to retain him. That wouldn't prove the allegations about his work. Be careful you don't read things into it just because you may know things that you can't prove. And how do you have the e-mail - it's personal data and not about you - so why have you emoved it from the office? That would be a disciplinary offence - sorry!

 

I guess I need to think long and hard about what steps I next take

 

PS.Are the company alowed to withold holiday payment which has been acrued throught the year as I haven't been paid for this? No - they definitely can't do this.

 

Do think about it - but obviously not for long. You might try getting some free legal advice from a solicitors - many do initial consults free. But I wouldn't be hopeful.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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An independent department had reviewed this one particular ex employee's work and had identified that the reports were incorrect, as I was in charge of correcting these reports I was also "cc" into the emails, these were also sent to my personal email as I worked from home or in other locations around the country. As these emails were sent to my personal email and I was in some way envolved would I not be able to use these as proof? As I didn't take them from the office.

 

I can also call upon this employee as a witness if need be, so wouldn't that help my case?

 

I don't know if this is important or not but my P45 was issued (at least dated) before the date that I was actually dismissed.

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I think it is dodgy - this is still personal data even if you were cc'd into it. It's no different from your being an HR oficer and taking documents from somebody's file which you have because you are an HR officer. Obviously I can't read what you have, but what if the employer was to say - "there was an ongoing investigation into his errors, during which time he resigned. In order to prevent him from claiming that we had forced him into it, we offered him the chance to return to our employment. Obviously, had he done so we would have continued the investigation, and tyhis then may have led to disciplinary allegations being brought. In fact, if an employee resigns whilst an investigation is going on, employers actually do send such letters to cover their backs against claims of constructive unfair dismissal. And if the employee would be a witness - and he may not be prepared to - how credible would he be if the employer said that?

 

The P45 may help a bit - but they may simply claim that it was an error on the date.

 

There is one other factor which I didn't go in to previously - what may or may not happen in one instance doesn't mean the employer has to do exactly the same in another, because circumstances are never the same. Say Joe steals £10 from the till, and gets let off. Tony steals £10 from the till and gets sacked. Is this fair - well yes, it can be. In his disciplinary Joe says that he is very sorry and was going to put it back on pay day, his son is in hospital and he couldn't afford the fares to see him, and he wasn't thinking straight. Joe's doctor backs him up and says that Joe has been very worried and is on medication which affects his judgement - so the employer decides that Joe is "not guilty" - the employer accepts his mitigation. But Tony has no such reason and gets sacked. The employer can do this - they can accept that circumstances may be different and come to different decisions. It doesn't make either less guilty and in the eyes of a tribunal (who cannot in law consider mitigation) they are equally worthy of being dismissed for theft. And so a dismissal in either case would be fair in law.

 

As I said before, if you really want to be sure that you have explored all avenues then get some legal advice - if you can get advice free, at least if the solicitor isn't hopeful you will have done everything you can and will have to put it behind you. But that clock is ticking on the time limit anyway, so you must decide soon.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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  • 1 month later...

Hi all

 

Hopefully just a quick one :)

 

I was sacked for gross misconduct, at the original disciplinary meeting before a decision was made I wasn't given any evidence of the allegations against me.

 

On being told I was sacked I requested an appeal hearing, as I had disagreed with this. At the appeal hearing I was presented with their evidence. This evidence related to new allegations which were not part of the original disciplinary, also there was evidence which did relate to the original allegations but had clearly been produced after my sacking.

 

So I know I'm probably clutching at straws but this has got me thinking:

 

 

  • They can't bring up new allegations after my sacking?
  • Has the company acted wrongly by not giving me the evidence at the original disciplinary meeting. (I was informed they were investigating 6 - 8 weeks before I had disciplinary meeting, I was off sick at teh time)
  • Can I argue that the company didn't make a fair decision as they never had the evidence at the time, It is clear that they only got thier evidence after I had been sacked. I'm guessing this is why they never produce evidence at the original disciplinary meeting.

I wonder if someone more legal minding (it wouldn't take much) would let me know what they think.

 

thanks for reading

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Hello again stressedbunny. If you have time, have a read around the forum because I think evidence after the event has cropped up recently on the forum.

 

You might also want to post a link to your recent thread to help the caggers on the forum.

 

I hope we can help you. My best,

 

HB

Illegitimi non carborundum

 

 

 

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The company cannot bring new allegations once you are dismissed, but equally, if they overtunred the decision, they could do so. I do not otherwise think that I can add much to the advice I gave you previously. On at least one count - of not keeping financial ledgers up to date - you agreed that you were guilty, and that alone could be sufficient to make a dismissal fair. You would have to take legal advice to see if anyone thought you had a case, but having agreed sucha serious allegation, I don't honestly hold out much hope.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Thanks for the advice.

 

To add to my previous post in another thread, I've managed to find a text message (on my phone) from my boss telling me not to worry about keeping the ledgers up to date but to concentrate on a new project, As we can catch up with them later. I know you mentioned data protection in the prevoius thread but as this was sent to my personal phone I'm sure i can use this in an ET (can't I?)

 

What about the company not gving me their eveidence at the disciplinary meeting? does that count for anything? also the evidence that I have now got from them I'm clearly able to prove that this was constructed after I was sacked? does this help me in anyway?

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If the evidence was not provided to you then it may help a case - but that still doesn't get around the fact that you admitted to a serious lapse in terms of the financial accounts. To be honest, it's really difficult to say, because I went through the old posts before answering, and there is still a lot of clarity missing. It seems straightforward that you didn't keep the ledgers up to date and you admitted this - what evidence did they need to produce if you admitted it? I am not at all clear about what you are claiming here, and it might be easier if you explained exactly what you are saying.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Hi, I hope I can explain this! Go to your other thread and click into the first post you made. When you're looking at that post, the white dialogue box at the top of your computer screen should read http://www.consumeractiongroup........etc. If you copy that, you can paste it into a post on this thread. Have a go and if it goes horribly wrong, I'll help you tomorrow.

 

HB x

Illegitimi non carborundum

 

 

 

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  • 2 weeks later...

the alleged failure to perform tasks is a weak one to prove. and saying, well its happened before without warnings/disciplines or other people do it without disciplines is not a defence. this is why so many workers dont help others, as they want to make sure they do theirs and they ask for support. thus stressing the 'good guys' and causing trouble for the 'good guys' that make the occassional mistake.

 

the text message from manager saying "dont worry about deadline move onto new project" can help in one particular ledger, but if they have multiple occassions it occuring you cannot really use the excuse. its not important because one time he let it go. if they have 5 occurances you will need 5 pieces of proof that new projects marked "urgent, to complete by XX/XX/XXXX" or yes more texts/emails for each occurance.

 

it might have been a 'accustomed condition' that new projects took more priority over other tasks. but you still need proof that you were asked/allowed. otherwise managers can discipline you for bad time keeping. some employees keep notes for every task they do and/or ask management at EVERY oppertunity about which is more important. even after multiple years, knowing the difference. proof is the only way to win.

 

its why the bureacrates keep their jobs. they spend 90% of time filling in forms to show they can only manage 10% of the workload. but by having the notes they get away with it. its a bad system but sometimes you gotta play the game to win it.

 

i do believe however that they cannot seek to discipline you while on sickness. as if your not well enough to work then your not well enough to attend a disciplinary. seek GP's advice and make sure you have sick notes for dates of disciplinaries. they cannot force you into work or stressful situation if off sick.

 

the only thing they can do is after a lengthy sickness absense follow a redundancy route if they feel that business will suffer up-on return to work or that you should be classed as unfit to work . but this is indeed after a lengthy sickness.

 

correct me if i am wrong but i have read somewhere that illnesses due to stress would quash any disciplinarys apart from gross misconduct for a 6 month period after returning to work. giving the employee time to settle back in, and show how they are fit to work.

 

then concentrate on only doing your job. i know if other peoples accounts are not finished might hinder your work. but suggest seeking managers to set timescales for other workers and self to make system more efficient to all.

 

check your terms and conditions of employment. if there are terms where you have to complete tasks within set deadlines. then by not achieving them limits your case. unless you can provide proof that you realised a deadline was approaching and asked for support from manager/team leader.

 

basically in future if you need colleagues 1 accounts by 2pm so that you can merge them into your figures for a 4pm deadline. then internal mail. email colleague at 1pm reminding of deadline. and seek support vi email/internal mail at 2pm your deadline may be delayed due to.... colleague 1

 

if colleague 1 is a person that sits on his bum till 2pm and hopes ull come running over do his work for an hour and then try finishing your own 2 hours work in the final hour then dont put up with it, he is costing you your job.

 

its about being pro-active. allowing it to happen doesnt mean your getting treated differently due to sex/gender but your being treated differently because you allow it.

 

i know the 'nice guys/gals' dont like to be a grass. but at the same time what respect is he showing you. does colleague one help with your accounts after you have finished with his? so both are done on time?

 

in my last employment the manager said my task completion deadlines lacked merit. to which i replied to do a 'time and motion' study on me to see where improvements coul be made or for him to fully understand the problem before accusing me.

for him to no do a time and motion study would be a management failure to provide support. which would have been good to use against them. also although doing the job for so long some people do get into a set routine their use to which does make the overall system inefficient, without knowingly doing so. and a outsiders prospective to notice it and explain how EG emailing a form at 10am could help colleague 1 to finish earlier then 2pm thus allowing you to complete tasks at 4pm deadline.

 

some people have been known to do a certain account at 9am-10am and another at 10am-11am as the second account needs more brain power which on a morning peoples minds arnt active till 10 so they try starting off with simple tasks. but if colleague 1 needs the second account before he can start might be where problems begin each day.

 

again without realising it .. it could be a third person putting a spanner in the works. by doing the more important account later. food for thought.

ask manager to do a time and motion study. they will soon realise first hand who is the hard worker and who is the one that truly needs support.

 

dont think time and motion studies are negative. i actually enjoyed it as i then got to concentrate on my job, the manager employed an extra person to do tasks i was being asked to do outside of my job title and a colleague got the slap wrist and not me.

Edited by meekmeek
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