Employment Issues

[Diane27]

Hi, dont know if anyone can help, this is a long story. I worked for a company since June 2008 and was employed as a export administrator, things were going well then after a year I fell pregnant went on maternity leave for 6 months. I returned to work in January this year, when i returned I returned part time. When i returned I didnt have as many jobs as I had before maternity leave but I thought this was to ease me back to work. However as time progressed I realised I was infact in a totally different job role so I challenged my manager to see why I had all my work took away and was doing only the jobs no-one else wanted to do. He couldnt give me an answer. I told him so many times I was unhappy. I was then missed out of training, the only person in the department not to receive training. I was being missed off emails within the team, and also made to feel as though I wasnt part of the team so again I told my manager who again did nothing. It then emerged that the company had advertised a vacancy that was supposidly my job for a salary of £5000 more than me and also 2 more holiday days before pro - rata. They then hired this new person who told me that she had been told that I only do 'spreadsheets' i dont do orders or any other stuff. So this was the final straw I sought advice from ACAS who told me to put in a written Grievance, I did so on 2nd September. I was told there would be an informal meeting to discuss it however there wasnt, instead they suspended me!!! Claiming Gross Misconduct on my part. On the day they suspended me I asked if this was because of the grievance and the director said course not, I burst into tears and went to my desk to collect my belongings, the director followed me and grabbed my arm really hard and wouldnt let go. I had brusining in the shape of a hand print on my arm so I went to the police to report this as he had assaulted me he got away with it anyway due to insufficent evidence as no-one in the company would come forward and give a statement. The company claimed that I had accessed my managers emails via an external web link and would face disciplinary action, all this was being said since the grievance. I was so low, I could barely look after my 2 children the doctor prescibed me anti-depressants and signed me off work unfit to attend any meetings of any sort. The company still insited I attended until the doctor asked them to contact him to confirm I was in no state of mind to be put under interegation. The company sent me a bundle of ''evidence'' naming an IP address that was not mine, and stating times of alleged access from external sources and also allegedly from my pc. After looking into this, On the said dates I was on annual leave and have hotel receipts etc to verify I was infact no where near my PC. Not only that but the director claims they began to monitor my PC at work due to his wife telling him on the 31st AUgust I was using the company internet excessively (conveniently 2 days before my grievance) however on the 31st of August I was on annual leave and so were them two I have print outs of the holiday calendar to prove this. It seems to me the company have made up alleged evidence which i have proven can not be true yet they dismissed me anyway, despite me proving it was impossible for me to have accessed the emails externally as 1. I had no internet at home, 2. my IP address was different 3. I proved my whereabouts at the said time. there as been so much other stuff too like, they dismissed my partner whilst I was suspended with no reason but he only had 11 month service, they also forged his contract of employment. They claim I was still in the same job but 2 members of staff have given me written statements confirming in their view I wasnt. I have submitted a claim to the employment tribunal for Discrimination, Victimisation, Part Time Workers Discrimination and Unfair Dismissal this has been accepted, the company are going to go to tribunal and now I dont know what steps to take to make sure they dont get away with this, I have the backing of a local MP who says if the outcome isnt what I expect he will take on my case.

[elpulpo]

Hope you don't think me rude, but could you edit your post, setting it out into clearly spaced paragraphs? I can say that very few people will take the time to read it as it is.

[SarEl]

I am highly tempted at this moment to swear - a lot. At ACAS. Because there is an entire awful story here, some of which I hope can be verified and proven because the employer, based on your account, has acted appallingly. But I do wonder whether things might have turned out differently, and if you might have done things differently, if the advice you received from ACAS had actaully been correct. Because I deeply regret to say that it was about as far off the mark as it could have been.

 

Going right back to January 2010, when you returned to work, your legal right was to return to your existing job - on your existing hours. As sson as you asked for it to be reduced in hours, you lost a great deal of ground on your rights, because the employer was then at liberty to consider - not grant - your request, and if they could not accomodate your request to offer you a suitable alternative. Whicj left you with the choice of returning full-time to your exiting job, or accepting the alternative. I doubt you understood this when it happened, but the law does not account for not understanding your rights - and this is crucial. You allowed time to pass. More than three months. And even worse, more than six months. The time limit for a claim of sex discrimination relating to your return to work after your preganancy is three months. In exceptional circumstances, where a frmal grievance is still being heard and was submitted within the three months, this is extended to six months. You had been doing the "new job" for want of a better phrase, for nine months before speaking to ACAS and submitting a grievance - your claim on this is way out of time and ACAS should have known that. And advised you of that.

 

Your claim has not been accepted by the tribunal - this is something that is often misunderstood. It has been recieved by the tribunal, but any lawyer worth their salt will immediately challenge jurisdiction, certainly on the sex discrimination relating to the changed role. And they will win - the tribunal judges would have no choice but to rule this outside their jurisdiction because the claim is out of time. They may even do so without a pre-heraing review to consider jurisdiction, because unless there is something very crucial that you have missed out, and I cannot see what it could be, they have no choice on the matters relating to your maternity leave, return from maternity leave, and flexible working request - you did the job for nine months or so, without formal grievance, and in law that is agreement to the terms.

 

I am not sure that I can usefully comment on the alleged discrimination as a part-time worker, because I understand that you feel that you were left out of things, but I do not know what explanation the employer will offer for this. Assuming that your tribunal claim was made within three months of a "last action" of ommission by the employer, then yhe complaint will be within time - although I will lay bets that the employer lawyers will attempt to rule this out of time too. You need to be very sure that you have timelines available and supported by evidence to show that an act of discrimination against you as a part-time worker took place within that three months (less a day) when you submitted the form. It will almost certainly go to pre-hearing review if challenged.

 

I should also point out that on both of these allegations of discrimination, the burden of proof, if the claims are admitted as within jurisdiction at all, will initially fall on you to evidence - the employer need prove nothing until you have proven a case that discrimination may have taken place to the satisfaction of the tribunal. That is why so many discrimination claims fail.

 

The dismissal is obviously the most clear cut issue here. The employer must prove that they had evidence, or sufficient to form a reasonable belief, that you were guilty of what you were accused of. If you have provided evidence to the contrary, then that will be difficult to do.

 

However, I have to tell you that the best advice you will get is find a lawyer. Tribunals are long-winded - given the story you have told here I would expect, unless you are very lucky, that such a case would not come to court within the next year, or near enough. They are horrendous and stressful. The employer is going to go out of their way to depict you as a lunatic or worse, and their lawyers will, within the letter of the law, bully and intimidate you. And believe me when I say it - few people who embark on this path ever really recommend it, because even if you win, you will not feel any sense of justice at all. And just so that you understand what I am saying: I am a barrister specialising in employment law and I only ever represent employees - so I neither have any axe to grind for employers, but I do have 30+ years of knowing exactly how excruciatingly painful this whole process is for claimants, and that includes those who have a lawyer, which these days I regret to say, given the lack of legal aid, is very few.

 

Check all of your insurance policies to see if you have legal cover included. If not, see if CAB can advise on anyone, and if there is no joy there, try every no win no fee solicitor in the book. You will need a lawyer.

 

And one final piece of advice - your MP is either glaringly stupid or very naive. At best. Or a liar and simply getting you off his hands. Given he is an MP, I suppose any of the options is possible. There is not anything he could do - before, during, or after a case. Tribunals are courts of law like any other, and when the law decides, whatever the law decides, MP's do not get dispensation to overrule it. If he attempted to do anything he would not be protected by parliamentary privilege from possible contempt of court proceedings - or defamation proceedings from your former employer. MP's may make the law, but having made it they are expected to abide by it and its rulings, and a single constituents employment problems in a years time will be the least of his worries. He is not going to bring your case to parliament - the only place where parliamentary privilege holds - and his own party would prevent him from doing so. Political suicide has been committed over bigger issues. It simplt isn't going to happen.

 

So please find yourself a lawyer who will take your case if you can. You are going to need all the help you can get.

[SarEl]

PS - I apologise for all the typo's ! The faster I type and the more annoyed I am (at ACAS - not you) then the worse it gets. That's why I have a Legal PA who checks it all for me - unfortunately she doesn't do my forum posts too!

[Diane27]

Hi, Thank you for your reply. Its been a great help. The company did as you suggested and tried to get a case management hearing to rule out dates etc but the employment judge decided that this wouldnt be granted and requests all documentary evidence from both sides. Is this a good or bad thing? Diane

[Diane27]

Hi,

 

My case has just been heard at tribunal and I won the following:

 

Pursuant to the Maternity & paternity Leave Regulations 1999 Regulation 19

Sex Discrimination Act 1975 Section 3A 1b

Part Time workers (prevention of less favourable treatment) section 5

 

I need to prepare a schedule of loss, can you give me any advice on how to work this out?

[Marianne7]

Just want to say well done that you won, at least part, of your tribunal ~ that's great news.

[jtors65]

very happy for you, did you go with your own lawyer or a panel lawyer and did you have to go to the hearing?

 

Hi,

 

My case has just been heard at tribunal and I won the following:

 

Pursuant to the Maternity & paternity Leave Regulations 1999 Regulation 19

Sex Discrimination Act 1975 Section 3A 1b

Part Time workers (prevention of less favourable treatment) section 5

 

I need to prepare a schedule of loss, can you give me any advice on how to work this out?