Unfair Dismissal? ***WON***

[clemma]

No surprises.....have heard nothing back from the company re: notice pay and holiday pay. Ah well, did our part.

[MONX]

No surprises.....have heard nothing back from the company re: notice pay and holiday pay. Ah well, did our part.

 

I think I have a good idea how you feel Clemma, being in a similar situation however I am a bit further down the track from you (going to an employment tribunal) and luckily I dont work for the same @-------s that my partner did.

 

I think with some employers, they are so unused to being held accountable for their treatment that when someone questions it, initially it falls on deaf ears.

 

It may be a simple thing of them not discussing holiday pay and notice pay with you because of the data protection act? Did the OH email them or was it you?

[clemma]

It was sent from the OH's email, as has all correspondence. As far as they know it's the OH doing all the writing....

 

Anyway, while I was at work the OH phoned to tell me he finally had an email back.....just to tell him they will be in touch in a couple of days. I gave them 5 working days to resolve this, which means they only have until Thursday to stump up the money they owe him. Lets see eh?

 

I think you are right about them not used to people questioning them. Most staff are seasonal, so they get rid of them within 8-9 months or so.....OH was not seasonal.

[clemma]

So, finally the OH got a reply to his request for notice pay and holiday pay....

 

"Dear xxx

 

Just to confirm that there was an administrative error on your dismissal letter and you were in fact dismissed for gross misconduct. This was confirmed to you both by appeal appointment letter and by (the GM) when he responded to your email.

 

As such you are not entitled to notice pay. You are however entitled to holiday pay and that is 2 x days. This will be paid in the next pay run due 4th March 2011."

 

That's it. I'm sure they will not get away with saying "it was a mistake" - if so, they made a whole load of them. This is the first time they have mentioned that the dismissal letter was an error. They have, however, admitted to to the procedure being wrong.

 

Can anyone clarify that stating it was an error makes no odds to his claim?

 

 

(Oh, the irony.....the OH was dismissed for making an error, which was to all intents and purposes "an administrative error"......just saying )

[SarEl]

Just add it to the pile of evidence. It's their problem that they can't write letters, amongst other things!

[clemma]

.....and a pretty pile it's becoming

[SarEl]

After the tribunal you can dip dye it and make pretty Christmas decorations with it.

[natasha2010]

What a horrible situation for you both to have to go through, especially at early stages of pregnancy, I feel for you both.

 

Am going through something similar with my "bully boy" bosses, just got dismissed and I dont even know what their official reason was, am waiting for the letter - I made a complaint back in November about one director making inappropriate physical gestures - rubbing my hand, kissing it etc, and since then they made my life a misery and tried to bully me into leaving.

 

I too dont want to appeal (though I know I have to) since they will only hear the appeal themselves again (small company) and it will be pointless, but I need to do it for the tribunal case.

 

Personally - my experience of ACAS is that they are useless and on occasion have actually been quite rude to me. I dont even bother phoning them now.

 

Dont know if you already know this, but I found out my home insurance contents policy covered legal advice, and am taking my case through them now to save money.

 

Good luck with it all, I know how hard it is just doing the research and emotionally coping with it all. Lets hope we both get the justice we deserve ! x

[clemma]

So the OH and I went to see a solicitor today to get a little bit more advice (i.e what he would be entitled to).

 

Basically he was told he has a weak case. He should have appealed, and should try and get that started again - even though we know it will come to no good. We showed the solicitor every bit of paperwork. It comes down to the fact that they are a huge company so therefore they have more money than us. The fact they have made so many mistakes will be brushed aside.

 

Now I really do not know what to do.

[MONX]

Hi Clemma

 

I would hang fire before you get too despondant.

 

Was the lawyer a specialist in employment law?

 

SarEL seems to think you have a reasonable chance (based on the information you have posted on here) and she is an employment barrister.

 

I am far from being any kind of expert but I question the fact that they have failed to follow procedure correctly and that the "adminstrative errors" put you at a disadvantage as you were unaware or confused as to what was happening due to them. I should emagine a tribunal would see that as unreasonable - it is not the employee's responsibility to make sure that the employer adminsters his/her disciplinary procedures accurately?

 

I was unaware that you hadnt appealed against the decision to dismiss, did they give you a time limit in which to appeal because i would assume a tribunal would expect you to exhaust the employers appeal processes before you can apply for unfair dismissal through them?

Edited March 1, 2011 by MONX

[clemma]

The OH did originally appeal. When he received the invitation to attend the appeal hearing the GM had brought in further charges that were not part of his original disciplinary etc. SarEl gave us good information and advice and it was decided that the OH should not attend the appeal. Now it appears he should have done.

 

We know we have a good(ish) case but its hard not to get a little downtrodden.

 

(the solicitor was an employment law specialist by the way.....)

[MONX]

Clemma

 

Just re read your thread regarding the appeal and not attending.

 

As SarEL says, unless you were confident that your OH would recieve a fair and impartial appeal then there wasnt much point you attending and as you informed the employer of that, it should be enough for the tribunal.

 

It may be that although you have a good-ish case but not one that will render a legal bill of tens of thousands may have coloured the advice you got from the employment lawyer?

 

I have come to the conclusion that with all the cases on here, if we expect the worse and hope for the best most of us will be pleasantly surprised and no one should be too disappointed. It does come as a bit of a blow when someone of some authority shakes your resolve, but I would suggest that you look at it in the light that what ever happens your OH's employer will have to go through with the bother of attending a tribunal and paying for legal support.

[papasmurf1cx]

Why don't you just plough ahead with a complaint as a litigant in person? The other side will give you grief, no doubt, but you have nothing to lose, have you? They may get a preliminary hearing where the ET may advise that you may not have a case and you proceed at your own risk and possibly incur a costs order if you go against the ET ruling. If that happened you could just drop it without cost to you..... but the employer will have cost as they will employ a solicitor and barrister.

[elpulpo]

In my experience, Clemma, the opinion of solicitors can vary widely. I wouldn't be dispondant if the one you saw today wasn't that positive about your chances.

SarEl seems to support your argument, and she's very much the seasoned realist when it comes to the ET game.

Did you have to pay to speak to them, or was it a free initial consultation? Might be worth going to see one or two more, if you can. Years ago, I was dismissed, and the 1st solicitor I went to see was utterly dismissive of my chances at ET, yet the second, who was recommended to me by a friend, took the case on, resulting in a very fruitful settlement.

[clemma]

I've just had that same thought myself! The solicitor we saw was on a free consultation and I have a feeling a paying client was probably waiting for him. Going to call a couple more tomorrow and get a second opinion. SarEl is quite confident so I should bear that in mind.

 

Also, this solicitor didn't even bother reading the things we gave him - not fully anyway. He kept saying that the OH was dismissed for gross misconduct.....which he clearly wasn't.

 

Onwards and upwards then. Thanks for all your advice guys.

[clemma]

Just had a phone call from ACAS. They have spoken to the GM and he has given the OH 2 options.

 

1. Go through the appeal process (which of course the GM says he recommends.....wonder why?)

 

2. Send an email bullet pointing everything - why he thinks his dismissal was unfair, why he does not want to attend an appeal and what he is ultimately seeking. This would be a rather long email.....but surely all our evidence speaks for itself.

 

So, my question is, which route should we take. I am inclined to go for the latter. If the GM is wanting the appeal so much I have a feeling his intention would be to reinstate only to dismiss within a month or so (although properly this time).

 

ACAS also told me that the GM states he played no part in the original disciplinary. Unfortunately an email we have shows that he did in so much that he slated the OH's work on one particular unit (which was "coincidentally" brought up in the OH's 2nd disciplinary meeting). ACAS also told me to inform them about the situation with my pregnancy and what happened after notifying them i.e I was feeling harassed for a couple of weeks, and when I did not leave the OH expected this to happen to him. Even though it can not be proved, ACAS have said the OH can use it in his defence.

[elpulpo]

I'd be inclined to go for the second option, Clemma. That's how I'd submit any appeal, just set it all out in writing and refuse to get into any discussion with them.

How long has it been since he was dismissed now?

One tactic, that I used when a former employer offered me an appeal 3 months after they'd dismissed me (just after they got the ET3 and realised they were in the cack:-)), was to say, "OK, so if I appeal and you reinstate me, are you going to pay me the 3 months wages I've lost since my dismissal?".

To which the answer was, surprise surprise, NO!

Well, no appeal then:razz:.

It is a minefield, avoiding the offer of reinstatement, without compromising the case at the ET.

[clemma]

He was dismissed 3 weeks ago, so still plenty of time to submit an ET1 should he have to. I know he is avoiding reinstatement, but he does have good reason and a couple of tasty statements from managers stating the OH has poor workmanship etc (all rubbish of course.....no problems at all with him or his work in the 2 years he was there). Why on earth would a company that has so little faith in him want to reinstate him? The OH has also lost all his confidence in his ability etc., etc.

 

I will type up the bullet point email and post on here - may not be for a couple of days yet though.

[clemma]

Ok, so I attached the letter I intend to send to the GM. I am not going to send it today as the OH has an appointment with another solicitor tomorrow. At least he can show the solicitor this letter as it breaks everything down into bite sized chunks.

 

Oh, the letter is kind of long......if anyone does manage to read it any comments would be appreciated. Thanks all

for CAG.doc

[elpulpo]

This is so tricky. You really don't want to be reinstated, that's for sure, 'cos they'll put ya back in the job then very carefully shaft ya soon afterwards with full assistance from a solicitor or HR snake, and there'll be no comeback.

We've got to avoid the situation where they offer you your job back and you have to say no, because then you're in Constructive Dismissal territory, or certainly it's making the whole ET route much harder. I think it's a mistake to actually say in the letter that you don't want to be reinstated. You've got to make it look like you want your job back, whilst at the same time ensuring that they don't want you!

Tricky tricky. What does everyone think?

[papasmurf1cx]

I would not put in these bits

 

". This leads me to believe that if the company reinstated me it would only be because they knew that the dismissal was wrongful."

 

The ET will come to that conclusion anyway.

 

and

 

"Why I feel re-instatement would not be of benefit to neither the company nor myself:

 

• The fundamental breach of trust and confidence in management and the company.

• If I was to be reinstated I would constantly be worrying about my job security and that even the slightest mistake could and would lead to my dismissal

• Because of this I would be more likely to make mistakes due to the constant worry, therefore increasing my chances of dismissal.

• The lack of confidence in my own ability. This was made worse upon reading an email from you to xxxx regarding my work in one unit and also a statement written by xxxx stating “…..poor standard and displayed a very low level of competence or skill”.

• I do therefore feel it would not be beneficial to the company to reinstate me due to the lack of confidence management have in my work ability."

 

This is giving too much information away as to what you think. Also these are your answers if you got asked the question later on in the ET. Don't give information helpful to the other side if you can avoid it

[clemma]

Ok, so I'll leave the whole bit of re-instatement out - but the rest of the stuff is ok?

[clemma]

I would not put in these bits

 

". This leads me to believe that if the company reinstated me it would only be because they knew that the dismissal was wrongful."

 

The GM is already aware of this as it has been previously stated to him in an email. Regardless of whether I leave it in or not, the GM will still have this in writing.

[clemma]

This is so tricky. You really don't want to be reinstated, that's for sure, 'cos they'll put ya back in the job then very carefully shaft ya soon afterwards with full assistance from a solicitor or HR snake, and there'll be no comeback.

We've got to avoid the situation where they offer you your job back and you have to say no, because then you're in Constructive Dismissal territory, or certainly it's making the whole ET route much harder. I think it's a mistake to actually say in the letter that you don't want to be reinstated. You've got to make it look like you want your job back, whilst at the same time ensuring that they don't want you!

Tricky tricky. What does everyone think?

 

Well, I think the OH will just have to make himself out to be an arrogant ass (which is easy for him to do....)that they wouldn't want working there anyway. I'm sure this is all going be peeing the GM off! I haven't even put anything in about my pregnancy and how the OH expected this to happen (especially when I did not walk out as they hoped). ACAS said I should add that in, but I'm not too sure. Could be seen as tit-for-tat.

[WelshMam2009]

I think you need to consider what outcome you wish to achieve Clemma.

 

Is it reinstatement for your OH, in which case they could trump up further allegations 6 months down the line, or is it financial remuneration? If the latter, then you could consider a compromise agreement.

 

If you do proceed to tribunal, then I would ensure that your OH keeps a detailed record of all of the jobs that he is applying for, to demonstrate that he is actively seeking employment.

 

As regards the appeal, I personally consider it wise to go through the process, even though the outcome may seem somewhat inevitable. If your OH does not want to attend, then I would submit a written appeal, as you already seem to be inclined to do.

 

Best of luck!!