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Employment Tribunal Imminent - Some advice please?

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Hi there,

 

I am trying to help my daughter with an issue and hope that I have come to the right place on the Forum to get some advice!

 

I'll try to keep this short.

 

Feb 2010 - Daughter succesful at Interview with Large Bank

She then completed their "Screening Process" and was given a start date.

April 2010 - Daughter starts at Large Bank. Training Course for 6 Weeks.

May 2010 - Having completed Training and (in the words of her line manager) exceeding all targets, she is called into a Meeting and told she lied on her Application form re her Exam Results and therefore she's going to be sacked if she doesn't resign.

 

Union were involved at all stages of the internal resolution process. Daughter discovered she was pregnant two weeks after leaving Large Bank and therefore unable to get further employment for the time being.

 

Applied to Employment Tribunal during the internal process due to Large Bank dragging their feet and that fact that she would have been out of time if she had not.

 

So, Large Banks Solicitors are now getting nasty as the internal resolution process has come to and end with a big fat "no" and no supporting information or documents. Whereas Daughter can PROVE she provided her grades, but they will NOT give her a copy of her online application form to PROVE that she "lied" (their words)

 

Via Employment Tribunal we have requested an Order to get them to disclose the Online Application Form. Now their Solicitors have said they will "next week" when Large Bank gives it to them (So why not just show it to us in May and every meeting in which we've asked for it since?) and meanwhile will we agree to show them our paperwork if they show us theirs!?

 

So, where from here?

 

Do we wait and see if the ET Chair will Order them to disclose? Do we Disclose our paperwork?

 

It's a bit complicated, without making it obvious who the parties are, so sorry if it's a bit vague.

 

The claim at ET is for wrongful dismissal (Procedures were not followed, not allowed representation in the "resign or be sacked" meeting, as it was "informal" - apparently!) and Age/Sex Discrimination (Union feel that they wouldn't have treated someone older with more life experience in this way)

 

Problem we have is that due to length of service/membership Union cannot help us from here on in!

 

Any help gratefully received. :???:


2007 Issues ALL RESOLVED

2008 Issues ALL RESOLVED

£4,200 in charges claimed back succesfully from a total of 5 Creditors

2009 Issues ALL RESOLVED

NEXT Directory - No Agreement, No Further Action **WON**

2010 Issues

Court Claim from Black Horse - AOS 22.11.10, CPR 23.11.10

Assisting Daughter with Employment Tribunal for Wrongful Dismissal/Discrimination

 

:) My Head is officially out of the Sand :)

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Hmmm - that was an imaginative stretch of the circumstances by the union - and one which it is incredibly covenient for the union that they do not need to defend. Largely because it isn't an argument that I would like to argue in a tribunal because I like winning!

 

I assume that the claim for wrongful dismissal is for notice pay because she was dismissed without notice? Because wrongful dismissal cannot compensate for failure to follow due process - basically an employer should follow their process, but unless you can claim unfair dismissal (which she cannot because she has less than 12 months employment) then an employer is not bound in law to do so. And the age discrimination, I have no real hope of. To prove any form of discrimination claim the burden of proof is initially on the claimant, and she will have to evidence that the bank treated her in this way because she was young. To be honest, employers often use the "resign or be dismissed" tactic, and it has no correlation to the age of the employee. And I am strugging to see any form of sex discrimination here - she didn't find out she was pregnant until after she left, so there isn't any valid claim in that.

 

But as things stand, until a tribunal orders the disclosure of documents, then there is no reason for the bank to disclose anything, and they do not have to. It isn't particularly good practice to withhold documents, but there is equally no reason why they should do so now. The exchange of evidence (the "you show us yours and we'll show you ours") is a formal process in a tribunal, and the tribunal would set a date for this to happen during the CMD.

 

You appear to be at a very early stage in the tribunal process - most cases would not have had a CMD yet, and the actual tribunal date is still likely to be months away unless you are very lucky and have one of those rare tribunal offices that does not have an immense waiting list of cases. You have no mentioned ACAS involvement - both they and the tribunal office can provide you with guidance on the tribunal process (but not help as to what you should do) - and there are also a number of on-line resources that can help you to understand what is happening.

 

My guess would be that the next moves for the employer will be to threaten costs against you, which is not likley to be a serious danger - although you should very carefully listen to any indication from the tribunal judge that indicates they do not think your claim has merit, as that would make the risk of costs a real possibility. The other possible strategy for the employer would be to request a PHR to determine whether there is a case to answer. They can do this, and it is up to the tribunal whether they accept it or not - although they may well do so.

 

As a general rule banks tend not to offer to settle - they are of the "fight them in the trenches" brigade who will fight any action against them even if it would be much cheaper to settle.


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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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SarEL - thanks for your reply.

 

The Solicitors wrote a Costs letter to my daughter before the second stage of the internal process had even been heard. The letter included several threats and we copied it to the Tribunal Chair. He was not impressed and wrote to them to explain themselves. The copy we have of the reply doesn't really explain their behaviour at all.

 

Their first move had been to request a deposit, but the Tribunal Chair told them "no", not least because they had not complied with Rule 11(4) and copied us in.

 

They have requested a PHR, but again did not comply with rule 11(4) until the Chair asked them if they had!

 

We have requested the documents that they are supposedly relying on to show that she "lied", ie her online application form as this is vital to prove she didn't. They haven't produced this at internal hearings or via the Solicitors, so we have asked the Tribunal to Order them to. No response thus far.

 

We have also requested a CMD rather than a PHR as, until we know whether they actually have certain documents we cannot know whether to take this further.

 

She was NOT given her two weeks notice pay, despite their assertion that she resigned. The fact is she didn't resign, she left the office on the same day and didn't return because she then took Union advice. However, they didn't follow "Absent Without Leave" procedures either!

 

I will update when I have further news, unless anyone has further advice!


2007 Issues ALL RESOLVED

2008 Issues ALL RESOLVED

£4,200 in charges claimed back succesfully from a total of 5 Creditors

2009 Issues ALL RESOLVED

NEXT Directory - No Agreement, No Further Action **WON**

2010 Issues

Court Claim from Black Horse - AOS 22.11.10, CPR 23.11.10

Assisting Daughter with Employment Tribunal for Wrongful Dismissal/Discrimination

 

:) My Head is officially out of the Sand :)

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SarEL - thanks for your reply.

 

The Solicitors wrote a Costs letter to my daughter before the second stage of the internal process had even been heard. The letter included several threats and we copied it to the Tribunal Chair. He was not impressed and wrote to them to explain themselves. The copy we have of the reply doesn't really explain their behaviour at all.

 

Their first move had been to request a deposit, but the Tribunal Chair told them "no", not least because they had not complied with Rule 11(4) and copied us in.

 

They have requested a PHR, but again did not comply with rule 11(4) until the Chair asked them if they had!

 

We have requested the documents that they are supposedly relying on to show that she "lied", ie her online application form as this is vital to prove she didn't. They haven't produced this at internal hearings or via the Solicitors, so we have asked the Tribunal to Order them to. No response thus far.

 

We have also requested a CMD rather than a PHR as, until we know whether they actually have certain documents we cannot know whether to take this further.

 

She was NOT given her two weeks notice pay, despite their assertion that she resigned. The fact is she didn't resign, she left the office on the same day and didn't return because she then took Union advice. However, they didn't follow "Absent Without Leave" procedures either!

 

I will update when I have further news, unless anyone has further advice!

 

The costs threat was rather early - but not surprising. I am surprised at the Tribunal Chair doing anything, so it must have been quite "strongly worded" because all of us know that it is both possible and permissible to make such a threat, whether or not we have any realistic prospect of obtaining costs.

 

You will get a CMD whether you want one or not - but the tribunal won't hold one at this stage unless there is a matter of greater import than documents and timetables. As I said, the exchange of bundles, as it is called, comes much later and they are unlikley to be rushing disclosures at this stage given that a later CMD will still be needed and most offices are snowed under with claims that they cannot manage.

 

I am somewhat concerned about your "union advice". I was worried a bit at the first post you made, and now I am outright worried. The WORST thing she could have done was not return to work without any explanation, and if she didn't return to work then she isn't entitled to be paid for time she wasn't there. What on earth were the union thinking - the correct advice was to return to work and refuse to resign. Or at least, that she refused to resign they would have to dismiss her, but that she would have no claim for unfair dismissal due to her length of service. Did the union actually warn her of the consequences of not returning to work - because this is the LAST piece of advice I would give someone. In fact, not even that since I would never give such stupid advice.

 

As for absent with leave processes - as I said before, she had worked there for weeks, so they are not obliged in law to follow any procedures. Someone I know once described this as "dismissal delivered by tap dancing elephants" - in other words, during the first 12 months the employer can dismiss how they like, for any reason they like (or with none) and there is almost nothing you can do unless you can prove (and prove you must!) unlawful discrimination.

 

I cannot see what the documents have to do with this. Whether she lied or not (and I am not saying she did) isn't relevant. This is a fundamental error in thinking on your part. The relevant matters are:

 

(a) was she DUE and entitled to two weeks notice - and if she failed to attend work then she is certainly not due payment for periods she didn't work (this is the wrongful dismissal part)

 

(b) can you EVIDENCE that this action was a result of her age - which I cannot see right now that you can. Resign or be dismissed is not a threat which is age-related

 

© can you EVIDENCE that this action was a result of her sex - which I also cannot see as the threat is used equally against men and women and is not gender specific, and her pregnancy was not known about because she didn't know herself until two weeks later.

 

The one thing that is in no way relevant is whether she lied or not - because this only matters if the claim in unfair dismissal and the employer cannot evidence the allegation made which is the subject of the unfair dismissal.


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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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