Discrimination case, need advice please help............

[innocent123]

I am going through a formal disciplinary hearing and the key dates and incidents are appended below:

I was employed on 16 Feb 2009.

Allegations were made against me on 4th May 2010.

Hearing Manager met the allegers on 14th May 2010.

I was informed about the allegations on 27th May 2010.

I was suspended on 28th May 2010.

I was invited for an investigation meeting on 2nd July 2010 by the letter dated 16 June 2010,letter only high lighted the allegations and didn't provide any information about the incidents on which I will be questioned .

The investigation meeting was voice recorded.

I was informed by the letter dated 16 July " that it appears that this matter should proceed to a formal hearing.You will be notified in writing of the date and venue for the formal hearing in line with the employers Performance and Conduct procedure.I was not provided with any documents with the letter ( not even the transcript of the investigation meeting held on 2nd July 2010.

On Friday 20th August 2010 I received the letter sent to me by the hearing manager,which was dated 16 August 2010 along with the management statement of case prepared by, investigation manager,The management statement of the case consisted of around 1300 pages.

I was asked to provide my defence statement of the case at least 2 working days before the hearing date which was 26 August 2010.

 

Hearing manager gave around 9 weeks to investigation manager to prepare the statement of case which comprised of few hundred pages.

I was given only one working day to read the statement of the case, contact the witnesses and to prepare my defence statement.

My request to give me reasonable time was turned down by the hearing manager on the phone on 20th August 2010.I was informed by the hearing manager that the policy only allows 5 days to be given to you.

I emailed the hearing manager with the my concerns, quoted our telephonic conversation where he turned down my request to give me reasonable time. I quoted the policy which doesn’t give the time limit of 5 days, and also quoted the policy which says that the hearing manager will seek to agree a date which was never agreed or discussed with me as I was entitled to have representation and had to work with their availability.

After my email Hearing manager gave me more time and set up the date which was on 10 September 2010 which fell on EID day the holiest day in Muslim faith. Again this date was never agreed or discussed with me.

I emailed hearing manager on 31 August 2010 raising my concerns over the hearing on EID day.

I met the hearing manager on 1st September 2010 and again requested in person to accommodate my religious need and move the date a day before or day ahead.

 

Hearing manager refused to move the date because of other panel members A/L and diary commitments.

Hearing manager also commented that Eid was on 9th September 2010 in North America.

Hearing manager sent me a letter which was not dated which I received on 8th September (not sure of the date) stating that the hearing has been moved to 13th September 2010.The reason for the change of date was to accommodate one of the panel member because of bereavement.

The letter also stated that “I am aware that the original date of the hearing was on the same day as EID.

The hearing continued on 13th September 2010 and the panel member who was accommodated for 13 September 2010 did not join the hearing and was replaced by another panel member.

I raised my grievance during the hearing to the panel that I believe that I was discriminated against my religion because i was never accommodated for my religious needs but the other panel member was accommodated.

I also raised a grievance against hearing manager in the hearing that i was given very less proportionate time to prepare my defence statement of the case and i believe that i was treated less favourably as compared to the investigation manager.

No one listened to my grievance.

On 2nd october 2010 I submitted my formal grievance to the line manager of the hearing manager via email and her reply is as under:

 

As you are currently progressing through a formal process, any concerns should be submitted as part of your appeal and will be considered by the appeal panel in the normal way.

 

You should continue to participate in the formal process, note your concerns with hearing manager and then submit them as part of any appeal that you wish to have considered.

 

In the meantime, if this matter goes to appeal it may be that I will hear it. Considering this, I need to request that you do not contact me over this matter in future and I would suggest that you contact Workforce for advice.

 

I contacted the HR ( workforce) for advice on 21 October 2010 and the director of workforce replied :

 

In instances where formal processes have been convened, HR assistance for staff is not provided. You should ask this through your trade union or support assisting you in the process.

 

I trust this is clear and you progress as indicated.

If you do not have any support, I suggest you contact your local Citizen Advice Bureau or ACAS helpline.

 

I contacted ACAS and was referred to EHRC .I was asked to send my employer the questionnaire under RRA 1976 and The Employment Equality (Religion or Belief ) which i sent on 12 November 2010.

 

My employer has still not replied to the questionnaire.

I submitted my ET1 in the employment tribunal on 15 November 2010 for race and religious discrimination.

 

Please note I am still suspended and the internal disciplinary process has still not been completed.

Please advice me on the following questions i have ;

 

Is it a direct discrimination or indirect discrimination.

 

and for both cases what defence is available to my employer.

 

what are the strengths of my claim.

 

can i claim for injury to feelings in this case if yes up to how much.

 

Thanks in Advance.

[rebel11]

Hi innocent

 

Welcome to CAG

 

The guys will advise as soon as they are available.

[honeybee13]

Hello there.

 

Wow, that was a post and a half. Your heading is about discrimination. Correct me if I'm wrong because we may need to ask more questions, but is the basis of your case the date of this hearing conflicting with your religion. Can you prove other instances of religious or other discrimination [that you have documented proof of]?

 

It may or may not be relevant, and the others will comment, but did you do whatever the hearings were about?

 

My best, HB

[innocent123]

Thanks honey for the reply.

I am claiming discrimination.

1. I was given only 1 working day to prepare my defence statement of case and the investigation manager was given 9 weeks to prepare the management statement of case.

2.I feel the hearing date on the EID day was not moved despite my 2 requests but it was rearranged to accommodate the other panel member because of bereavement.So I feel I was treated less favourably.

 

I hope it answers what u asked for.

Regards

[honeybee13]

Thank you for that, I think it will help the guys. They should be along later.

 

My best, HB

[madari]

Hi,

Without knowing what is alleged against you, it is difficult to know which way your case will go or how to advice you.

 

All i can say is that Discrimination cases are very very hard to prove in a court of law ,no matter how much evidence you have.

 

Furthermore once an employee raises the flag of discrimination you become a liability to that company,and therfore if you value your job then think very carefully in what you do next.

 

And yes all discrimination cases are subject to the `injury to feeling`clause.

 

I suggest you read the `Injury to feeling awards Vento Guidlines`[google]which will give you an idea of what to do next.

 

Good luck

[SarEl]

In relation to the hearing date - this was moved to a later date after you asked for it to be postpones in writing. This was the correct thing for the employer to do given the circumstances that you described. The earlier refusal is therefore not relevant - a delay was agreed. The employer has therefore complied with both their own policy and the law. I cannot see any grounds to complain on this matter, and certainly no grounds to claim it as discrimination. It is quite certain that you cannot expect 9 weeks to prepare your case simply because the investigation took that long. If there is anything to go on here, and it is not something that a tribunal can determine unless you are dismissed, there is possibly an argument that you should have been allowed more time to prepare your defence if that was needed. But without knowing the case, that is a theoretical matter which I cannot really guess about - 5 days may have been enough and a tribunal might agree that to be the case, I don't know.

 

On the second matter, I am also struggling to see a case here. The law does not require an employer to give you the day off work (and attending a disciplinary is work) for religious festivals. They are required to make reasonable efforts within their business needs. In this case there was a very unusual circumstance - a disciplinary hearing - and a need to have several people together in the same place, so I do not think it entirely unreasonable that the employer refused, especailly since, as you will be aware, there was some consdierable discussion in Britain about exactly when Eid would be (given that it is not a fixed date) - I know that in my city some Muslims celebrated on 9th and some on 10th, and that was even after the official communication of the date from Saudi. The fact that the hearing date was later postponed again due to a bereavement has no relevance here - the employer may do so. But the employer is also required to conduct the hearing as soon as reasonably practicable - in other words, not to drag their feet over it - so I don't see that a tribunal would consdier their wanting to proceed as very strange. Unless there are acts of unlawful discrimination which are separate to the disciplinary issue, I am struggling to see that you have a strong case of anything here.

 

Given that you have submitted a tribunal claim - without, it would seem, completing the grievance process (I cannot see any mention of appealing the decision) - and I also have to say that the decision of the employer appears reasonable and equitable in that you are complaining about matters of the disciplinary process and the correct place to raise those is within the disciplinary process, then I can legitmately see why the disciplinary process has been suspended. This would be a sensible move by the employer at this stage.

 

You fail to explain the wider context of this - what you have been accused of - but assuming that it is possible that the outcome may be dismissal, and given that you are suspended, what you are accused of doing is certainly relevant to the way in which the employer should conduct themselves in terms of achieving a speedy resolution, one way or the other. That will probably not be possible now, but it certainly would strengthen the employers case that they wished to avoid postponements if possible.

[innocent123]

Thanks SarEl,

 

I raised a grievance through disciplinary process, but it was refused and even HR did not provide any advice on that.

 

The disciplinary process was never suspended and its still ongoing the outcome may be dismissal but during the process Two of the witnesses admitted that they did not provide the true information earlier when their statements were cross examined by me and my representative.

 

A vital witness was tempered the email and provided that as evidence against me and i produced the original email and i wanted to cross examine that witness but i was told very recently that he has left the organisation and i was very surprised that even the hearing manager didn't have any questions to ask that witness and just provided him the easy escape to leave the organisation.

 

My real concern is that i was not accommodated because of my religious need and on the other hand the panel member was facilitated because of bereavement.It dos not seem fair to me. i raised my concerns on 31 September 10 days before the hearing that it was falling on the EID day as I was sure according to the calculation which I follow.

The hearing manager also made comments that the EID was on 9th September in North America when i asked him to move the date of the hearing on 1st September.I feel it was unwanted conduct and i was embarrassed by this statement.

 

I also would like to mention one more incident which took place in December 2009 where there was an acting up opportunity and it was never advertised and was given to the other manager who had the same level of skills and qualifications as me. I raised my concern on that issue and i was forwarded the JD of the acting up position and was told that i didn't full fill all the requirements and i could clearly see that the manager appointed for the acting up position also did not full fill all the requirements. I did not pursue that further but now because of these serious of incidents i feel that i was discriminated at that time as well.Can i quote that incident in my claim or can i bring a claim for that i know its too late but can i still quote that incident to support my case in the tribunal.

 

Your views on this please.

 

Regards

[SarEl]

Thanks SarEl,

 

I raised a grievance through disciplinary process, but it was refused and even HR did not provide any advice on that. But it was not refused - it was consdiered and responded to - you have quoted the response given to you. HR are not there to provide you with advice - they are the employers advisers, and if you want advice on your position you must arrange for your own - this is what trades unions often do, but in the absence of being a member then it is still your responsibility to obtain advice for yourself.

 

The disciplinary process was never suspended and its still ongoing the outcome may be dismissal but during the process Sorry, by suspended I meant that it is obviously now not being carried out on the original timetable - delayed if you wish. But it would appear that the hearing has, at least for now, been "suspended" because they have not yet proceeded.

 

Two of the witnesses admitted that they did not provide the true information earlier when their statements were cross examined by me and my representative. And that is fine - that is what the disciplinary is for. To hear all the evidence including your own.

 

A vital witness was tempered the email and provided that as evidence against me and i produced the original email and i wanted to cross examine that witness but i was told very recently that he has left the organisation and i was very surprised that even the hearing manager didn't have any questions to ask that witness and just provided him the easy escape to leave the organisation. That may well be the case - people do leave. In such circumstances the employer can still rely on their evidence, but if there is, as you suggest, evidence that this is a lie, then the employer should take this into account when deciding how relaible the evidence they have is.

 

My real concern is that i was not accommodated because of my religious need I have already explained this - the employer is under no obligation to do so. The law says only that they must try to accomodate the festivals of people of faith, not that they must. Given the circumstances of requiring getting the panel together and meeting business and diary requirements, plus, since you were suspended, trying to hear the case within a reasonable timeframe, and the uncertainty about what date the festival would actually be celebrated on, I think they have a perfect defence that they could not meet your request.

 

and on the other hand the panel member was facilitated because of bereavement.It dos not seem fair to me. I realise that it doesn't seem fair. But somebody died here. I doubt they planned it! It would be heartless (to say nothing of purposeless) to tell a panel member that they could not have compassionate leave when someone died. It isn't at all the same situation.

 

i raised my concerns on 31 September 10 days before the hearing that it was falling on the EID day as I was sure according to the calculation which I follow.

The hearing manager also made comments that the EID was on 9th September in North America when i asked him to move the date of the hearing on 1st September.I feel it was unwanted conduct and i was embarrassed by this statement. But how is this discrimination? It was explained why the hearing needed to take place, it was in your own interests for it to do so, if you are innocent, so that you can return to work. And you had no legal right to the day off - many Muslims I know worked on Eid's day because they needed to.

 

I also would like to mention one more incident which took place in December 2009 where there was an acting up opportunity and it was never advertised and was given to the other manager who had the same level of skills and qualifications as me. I raised my concern on that issue and i was forwarded the JD of the acting up position and was told that i didn't full fill all the requirements and i could clearly see that the manager appointed for the acting up position also did not full fill all the requirements. I did not pursue that further but now because of these serious of incidents i feel that i was discriminated at that time as well.Can i quote that incident in my claim or can i bring a claim for that i know its too late but can i still quote that incident to support my case in the tribunal. No - this was 2009 - a year ago. You cannot now claim that you were discriminated against a year ago!

Your views on this please.

 

Regards

 

I'm sorry, but I still don't see the discrimination here. It seems from your own version that you are facing some serious charges which it is in your own interest to disprove. The charges were not, or at least you have not suggested it to be the case, discriminatory, and you have described the employer as having taken all the correct steps and processes. If you can show that the evidence against you was malicious then you will no doubt be cleared, which is the outcome one assumes you would want. Having a disciplinary brought against you does not mean you are guilty - only that there is a case to answer. Assuming that you can answer that case, the outcome will be in your favour. If people have lied or fabricated evidence during the investigation, it is as much in the employers interest as yours that this is shown to be the case.

[innocent123]

Thanks SarEl

 

I am thankful for your response. I now have a CMD next month , should i continue with my case( I still personally feel i was treated less favourably .)

 

Regards

[papasmurf1cx]

Hi Innocent

 

SarEl is giving you some great advice here.

 

From one who has gone through the grievance procedure and an ET case for discrimination I can tell you you case on the facts you have given thus far does not stack up. You may very well have been discriminated against but the reality is that the original case against you has gone to 1300 pages. 1300; 1300 !!!!!!!!

 

I fear you are being sidetracked by a minor issue in comparison with the original case your employer is investigating. Can I give an analagy........... If a person attacks another with a knife causing serious injury and the Police use force to arrest that person and unfortunately hurt the person in the process, can you see that complaining about a minor infraction of excessive force may be right but is it relevant to the original allegation??? So the officer gets 'don't do it again' and 'excellent arrest' in the same breath from the supervisor and the assailant goes to prison for the assault.

 

Perhaps you should be asking Cagger's for advice on the 1300 pages of evidence you are trying to get away from by complaining about an irrelevant minor infraction during the grievance procedure????

 

Tell us more on the real problem and let us help you there.

[madari]

Thanks SarEl

 

I am thankful for your response. I now have a CMD next month , should i continue with my case( I still personally feel i was treated less favourably .)

 

Regards

 

 

 

Weather to continue with your case or not? there is only you that can answer that question ,as you seem to be very evasive as to what exactly is alleged against you.

[madari]

Hi Innocent

 

SarEl is giving you some great advice here.

 

From one who has gone through the grievance procedure and an ET case for discrimination I can tell you you case on the facts you have given thus far does not stack up. You may very well have been discriminated against but the reality is that the original case against you has gone to 1300 pages. 1300; 1300 !!!!!!!!

 

I fear you are being sidetracked by a minor issue in comparison with the original case your employer is investigating. Can I give an analagy........... If a person attacks another with a knife causing serious injury and the Police use force to arrest that person and unfortunately hurt the person in the process, can you see that complaining about a minor infraction of excessive force may be right but is it relevant to the original allegation??? So the officer gets 'don't do it again' and 'excellent arrest' in the same breath from the supervisor and the assailant goes to prison for the assault.

 

Perhaps you should be asking Cagger's for advice on the 1300 pages of evidence you are trying to get away from by complaining about an irrelevant minor infraction during the grievance procedure????

 

Tell us more on the real problem and let us help you there.

 

I couldnt have put it better myself !!!