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Unfair dismissal claim - Which points to focus on??


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Hello all,

I am assisting my partner with a claim for unfair dismissal which we have lodged with the ET. At the time of completing the ET1 we were still awaiting the outcome of the appeal hearing with her employer, who had managed to delay the appeal process at every stage.

As a result of the delays, and perhaps the fact that we naively hoped that her employer would sort something out following the appeal hearing, the decision to make a claim was fairly last minute and details of the claim are pretty much a copy of the reasons for the appeal. Due to the whole disciplinary process becoming needlessly over complicated, this has resulted in a fairly lengthy and detailed ET1 and we are now wondering which parts of the claim a tribunal will be interested in so that we can focus on these key factors and avoid wasting time concentrating on minor points that don't really matter.

So, following an earlier post where SarEl and HB gave me some good pointers I am hoping that some helpful people will be able to guide me in the right direction. :-D

My partner was dismissed for Gross Misconduct for ‘a serious breach of confidence and trust’ and the first point we have raised is that we don’t feel the allegations amount to Gross Misconduct. I understand from reading other posts that the tribunal is not there to re-hear the case but more to look at what process was followed by the employer to reach the decision.

So, (before I list all the details of what happened and bore everyone to tears!) my first question is will the tribunal be interested in this point, or can the employer decide to class any action as Gross Misconduct and dismiss an employee as long as they carry out the correct disciplinary steps when doing so?

Thank you in advance for any help or info that you can provide.

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my first question is will the tribunal be interested in this point' date=' or can the employer decide to class any action as Gross Misconduct and dismiss an employee as long as they carry out the correct disciplinary steps when doing so?[/quote']

 

No - quite simply they cannot just label something as GM and therefore it is.

 

For example in an 'ordinary' 9-5 office job I could put in my handbook that it is GM to arrive to work 1 minute late. If I then dismiss for one occasion of lateness of 1 minute I could not defend this simply by saying that it was clearly labeled as GM.

 

This is because, in a nutshell unfair dismissal, (assuming eligibility) is:

 

a) The EE proves they were dismissed,

b) That the reason cannot be one of the 6 potentially fair reasons and;

 

c) Even where it were a potentially fair reason, in the circumstances the ER did not act reasonably in treating that reason, as a reason to dismiss -

 

Or to put step © above in other words, it is at that stage, "... for the tribunal to decide whether in the circumstances (having regard to equity and the substantial merits of the case) the ER acted reasonably in treating that as a sufficient reason for dismissing the EE'.

 

Thus in your case you prove dismissal (which is probably not in dispute)- it is established that the reason given by the ER is a potentially fair one - conduct - BUT - your argument is that the ER 'over reacted' or did not act proportionally when treating that as a reason for summary dismissal.

 

I hope this is some help.

...................................................................... [FONT=Comic Sans MS]Please post on a thread before sending a PM. My opinion's are not expressed as agent or representative of The Consumer Action Group. Always seek professional advice from a qualified legal adviser before acting. If I have helped you please feel free to click on the black star.[/FONT] [FONT=Comic Sans MS] I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.[/FONT] [FONT=Arial Black][FONT=Comic Sans MS][COLOR=Red]'Venceremos' :wink:[/COLOR][/FONT][/FONT]

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Thanks for the reply elche, I think that makes sense. Is it also more difficult for the ER to class something as Gross Misconduct if it was not specifically outlined as such in the company policies, or other communications, etc? Unless of course it was something that would be considered fairly obvious, like punching your boss in the face because you didn't like the colour of his tie!

The next point we have raised is that during the disciplinary process the company repeatedly referred to different versions of their disciplinary policy. I have read that this is considered quite a 'no-no', but is this something that is worth focussing on? The background is that my partner was given a policy when she started with the company in 2008, but when she received the first letter inviting her to a disciplinary hearing the manager sent a policy that was 4 years older than the one she had and was fairly basic in comparison, although it did outline the basics of receiving written allegations, having a hearing and having a right to appeal. When we queried this with the company they confirmed it was the newer policy that was being followed. At that point they had missed out some steps that were included in the new policy but weren't in the older one.

Despite the company stating that it was the newer policy that was being followed, when my partner appealed her dismissal she was once again referred to the older policy. Even after she informed the appeal manager that it was the new policy that had been followed during her case, the manager continued to quote from the old one. In the appeal hearing the manager didn’t seem to think there was a problem with the different policies as they were ‘fundamentally’ the same, even though my partner pointed out that one of the steps in the new policy (which was not included in the old policy) had clearly been completely overlooked.

Once again, thanks in advance for any help! :-D

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If I was you I would write a letter to the employer and state that you want to know the discilinary proceedure used, date of disciplinary and reason why it was gross misconduct. The procedure needs to be followed if it was in place, otherwise why have them.

 

1 big rule - A INDEPENDANT PERSON MUST BE PRESENT TO DETERMINE THAT YOUR DESCIPLINARY WAS JUSTIFIABLE. As you can be hated for a unknown reason and be part of a conspiracy and removed by fellow employees.

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1 - Is it also more difficult for the ER to class something as Gross Misconduct if it was not specifically outlined as such in the company policies, or other communications, etc? Unless of course it was something that would be considered fairly obvious, like punching your boss in the face because you didn't like the colour of his tie!

 

1 -Yes this is exactly right.

The next point we have raised is that during the disciplinary process the company repeatedly referred to different versions of their disciplinary policy. I have read that this is considered quite a 'no-no', but is this something that is worth focussing on?

 

2) You should highlight this for two reasons.

 

Firstly, it could be relevant to the overall view of fairness or not of the dismissal if the ET finds a procedural irregularity BUT if your wife's conduct meant that she may well have been dismissed anyway then the ET may deduct a sum from any compensation to reflect this in line with Polkey - http://www.personneltoday.com/articles/article.aspx?liarticleid=50635&printerfriendly=true

 

Secondly, if there were contractual breaches then there could be common law contractual claims in addition to UD e.g. wrongful dismissal

 

Che

Edited by elche
a crucial 'if'

...................................................................... [FONT=Comic Sans MS]Please post on a thread before sending a PM. My opinion's are not expressed as agent or representative of The Consumer Action Group. Always seek professional advice from a qualified legal adviser before acting. If I have helped you please feel free to click on the black star.[/FONT] [FONT=Comic Sans MS] I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.[/FONT] [FONT=Arial Black][FONT=Comic Sans MS][COLOR=Red]'Venceremos' :wink:[/COLOR][/FONT][/FONT]

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Thanks for the response Alistair, but the disciplinary process is complete and on the ET3 the respondent has stated that the new policy was used throughout, even though they repeatedly referred to the old one at various stages.

elche - Thanks for your further reply. We have only claimed for unfair dismissal, so would the tribunal still take this into consideration as a breach of contract? Some of the information I have read makes it difficult to see some of the clear cuts between unfair and wrongful. Should we have also ticked the box for wrongful dismissal?

The next point we were wondering about is based around the actual allegations that were put to my partner. 5 allegations were made on the original letter inviting her to attend the disciplinary hearing. Firstly, the letter stated ‘alleged misconduct’ (not gross misconduct) and then listed the 5 points. Further down the letter it stated that if she was found guilty of misconduct the company may issue a warning and if she was found guilty of gross misconduct she may be dismissed. We have raised the point that it was not clear that she was being accused of gross misconduct, but have the company covered themselves by adding that if she was found guilty of GM she could be dismissed?

On the original letter the allegations were fairly vague (short one liners with no specific reference to incidents, dates, etc) and the company did not provide any evidence with the letter. So that she could prepare properly we asked for further clarity on the allegations asking for specific dates, etc. We also asked for any evidence that would be used. The company wrote back clarifying some of the allegations but still left some a bit vague, and they also sent statements, etc, that they were going to use in the hearing.

During the disciplinary process the manager brought in a number of accusations that fell outside of the original allegations but the company never wrote to my partner detailing any new allegations. When the dismissal letter was received the manager had listed a number of the additional accusations as part of the reason for my partner’s dismissal. They had also expanded the scope on some of the original allegations.

I have read some information on the internet that puts quite a bit of emphasis on the importance of the company providing clear allegations. It also stated that if anything new comes to light during the disciplinary process (in addition to the original allegations) that the company feels needs to be answered then they are to put these things to the employee as additional allegations in writing. Is this understanding correct, or are the company able to bring in anything that it feels relevant while it is conducting the process?

As always, thanks for any help!

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Were the allegations, both those stated in advance and the further ones brought up at the hearing, valid?

You seem to be placing a lot of emphasis on procedural inadequacy, which will only get you so far if the respondant can apply 'Polkey' at the ET and show that with correct procedure they would have dismissed anyway.

Sorry if I appear cynical. When it's ones nature, one just can't help it.

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Hi elpulpo, thanks for your reply. No need to apologise, I'm happy to get everyone's views to give me a more rounded understanding of things.

The basis of the claim is that my partner does not feel she is guilty of GM and feels that the decision to dismiss was based on other reasons, although we're not sure exactly what the reasons were. The way the company conducted the disciplinary process appears to be nothing more than a 'witch hunt' where it appears the manager has pulled in everything possible in an attempt to justify the dismissal. A large amount of our case does focus on the procedure that was followed by the company as there is evidence that they did not fully follow their own procedure, it appears that they handled a similar case involving another employee differently, there is no evidence of how they considered options other than dismissal (taking account of my partner's previous performance), etc.

In answer to your question of whether the allegations were relevant, I'll give a bit more info!

The original allegations were all based around a misunderstanding where a meeting with a client was cancelled but the employer was not informed. My partner was due to attend the meeting with a colleague who worked at the same level as my partner. The colleague said they were unable to attend the meeting as they were ill so my partner asked her colleague to contact the client and cancel it, which they did. The employer later found out about this cancelation and were not happy that they hadn’t been informed. They then called my partner and her colleague into a meeting to discuss what happened.

When my partner attended the meeting a question was raised around an expenses claim (value of £15) that my partner had made by mistake on the day in question. It was part of her normal working practice to regularly submit expense claims with multiple items on. When asked about it my partner informed the employer that the claim had been submitted by accident and that she would pay it back. The employer made no objection to this or offered any further questions in relation to it. Following this meeting the company issued the allegations to my partner which made no comment of the expense claim. Following an adjournment of the disciplinary hearing my partner was then presented with questions around the claim and why she had submitted it if she hadn’t attended the meeting with the client.

Following the adjournment the employer also raised a question around a meal that my partner had attended as part of her business duties. The company had given their credit card details to the restaurant and my partner was advised that she could charge a set amount of her meal to the card. My partner then paid cash for some additional charges. There was no mention of what this had to do with anything or why it had been brought up by the employer so my partner stated that she did not see what it had to do with anything as she had paid cash for the additional charges. In the dismissal letter the employer accused my partner of making unauthorised charges to the company credit card. During the appeal my partner was presented with an invoice relating to the meal where it appeared that the restaurant had charged her additional charges (that she had paid cash for) to the company credit card. She had not been presented with this invoice prior to the appeal hearing and upon seeing it she pointed out that although the invoice did detail her additional charges, it also showed her cash transaction for these.

Finally, after the adjournment the employer started to imply that my partner was in charge of her colleague. This had never been discussed with my partner before and as far as she knew both her and the colleague worked at the same level both reporting to the same line manager. Again, this was not mentioned in the original allegations but seems to have come about when the colleague has informed the employer that my partner told them to cancel the meeting.

The result of all this was that my partner was dismissed and her colleague kept their job.

This is where we are now left wondering what we are best to focus on as the employer seems to have brought in so much complication. Should we focus more on the point of it not being GM, or on the employer’s errors in conducting the process, or on the fact that they have shown no evidence of considering options other than dismissal, or that the appeal process was delayed and not completed by employer?????

Thanks for any input!

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Hi elpulpo, thanks for your reply. No need to apologise, I'm happy to get everyone's views to give me a more rounded understanding of things.

 

You can be sure Alistair will give some good rounded input.

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