Unfair Dismissal - Do you think I have serious grounds for appeal / tribunal

[DRR]

Hello,

 

I was employed by a large , well known company within the public sector for just under 3 years.

(I don't want to say their name but they deal with "offenders" in the capital)

 

At the end of June 2011 I was dismissed, the reason they gave on the official confirmation letter was along the lines of incapable through sickness absence.

 

My sickness record there is as follows:

 

July 2008 to end of 2009 - 26.5 days sickness on 6 occasions, 2010 was 36.5 days on 6 occasions.

 

The main periods of absence were approx 1 month due to my partner suffering post natal depression, this affected me and I was signed off with stress for approx 4 weeks. I also had to have 2 operations on my toe during this time and each time required 2 weeks recovery time.

 

Their sickness policy involves trigger points, and after my first period of sickness in late 2009, I was put onto stage 1 and given a target of no more than 4 days sick within 3 months. However I had to have my first operation on my toe within this time, therefore at the end of the 3 months, it was extended for 6 months with no more than 7 days.

 

I believe that during this next stage I met the target, but due to the "review meeting" taking place later than it should, it ended up taking another few days sickness into account and as such I missed the target by 1 or 2 days.

 

I was then put on stage 2 and given no more than 7 sick days target within 6 months, again within the 6 months I had less than the target, but the review meeting was delayed, I then had to take sick leave and when I returned this new sick leave as also factored in, meaning that I was told in April that due to myself now being put onto stage 3, I would be facing a panel to discuss whether my employment should be terminated. At this point, felt I could not face going to work so I was also signed off from mid April this year with stress, the meeting did not take place until 6 weeks later (despite them telling me it would most likely be within a few weeks).

 

My line manager made a report for this hearing, and I was sent a copy.

I attended the hearing and after explaining my side of the story, they decided to dismiss me with immediate effect.

 

I was intending to appeal so waited for the confirmation in writing, this came around 8 days later, I replied with a letter stating my intention to appeal, I received a reply stating that they found my reasons for appeal "unclear" and asked to make them clearer. During this time I decided to contact the HR dept and obtained my sickness record. I have now come to realise that in the report that my line manager wrote, she has made serious errors with the actual number of sick days I have taken, this information was also quoted in the letter confirming my dismissal. In total I have been falsely accused of having another 113 days sickness absence.

 

I am gutted that I did not spot these errors before the original hearing, but I have now highlighted these in my new appeal letter that was sent off by recorded delivery and also emailed to a few members of staff in HR who are dealing with it. I have yet to receive a response.

 

It has now been 6 weeks since my dismissal, and I am aware than I have 3 months from date of dismissal to launch an employment tribunal case.

 

Due to the way I have been treated I would prefer to given compensation, than to be given my job back, but I thought of going down the appeal process road first as if they reject by appeal it would make my tribunal case stronger.

I am aware that my sickness record is not great, but every absence of over 5 days has been certificated with a doctors note as required by their policy, and I am aware of other members of staff who have had longer periods of sickness and not been dismissed or even faced a hearing.

 

Basically I am asking if anyone has information on a dismissal that is likely to have been made on incorrect information. The HR person who provided me with my sickness record, was also the same person who was advising my line manager during the hearing and prior to it, so quite why they did not spot the errors also is beyond me.

 

Any info or advice would be greatly appreciated.

[dom2599]

I'm not expert, but I there are serious errors regarding the amount of sick days, then surely this must be grounds for a serious appeal!? If they have not responded after 6 weeks I think I would chase them along a bit and advise them with regards to time limits for starting ET, this may push them along a bit... Sorry I can't be much more help

[DRR]

I have just received a letter from them, confirming my appeal letter has been received and that they are now arranging an appeal hearing to be scheduled.

 

This raises 2 more questions,

 

1) If they schedule an appeal date that is weeks away, and the 3 month deadline for tribunal is passed, am I still able to go to tribunal if they uphold their initial decision?

 

2) If they offer me my job back, am I obliged to take it, as I would be returning to work under the same line manager who I now feel cannot be trusted and our relationship is destroyed. I am entitled to any compensation due to their incompetence and methods in which they dismissed me?

[dom2599]

I have just received a letter from them, confirming my appeal letter has been received and that they are now arranging an appeal hearing to be scheduled.

 

This raises 2 more questions,

 

1) If they schedule an appeal date that is weeks away, and the 3 month deadline for tribunal is passed, am I still able to go to tribunal if they uphold their initial decision?

 

2) If they offer me my job back, am I obliged to take it, as I would be returning to work under the same line manager who I now feel cannot be trusted and our relationship is destroyed. I am entitled to any compensation due to their incompetence and methods in which they dismissed me?

 

 

I'm unsure with this m8, i would get in touch with ACAS and ask them for some guidance

[DRR]

Does anyone else have any info that could help me?

[honeybee13]

Hello there.

 

Did you manage to speak to ACAS?

 

I'm not a forum expert, but I have a feeling that an ET could be your only way forward. If the others think that could be the way to go, then clearly you need to keep an eye on the time limit, as you say.

 

My best, HB

[postggj]

DO NOT MISS THE ET1 DEADLINE

 

ITS THREE MONTHS LESS 1 DAY

 

YOU CAN PUT INTHE ET1 CLAIM NOW, ITS EASY TO WITHDRAW WITH NO FINANCIAL OUTLAY

 

IF THEY OFFER YOUR JOB BACK

 

TAKE IT WITH LOSS OF WAGES AS CONFIRMATION

 

I WOULD GET THE ET1 FORM IN NOW TO BE SAFE

 

AND YES

 

ITS NOT UNLAWFUL BUT UNFAIR DISMISSAL, BUT THEY ARE CLAssed as the same in reality

[DRR]

I have called ACAS, they advised that I was best to go to the appeal hearing as it can increase the amount awarded by tribunal.

 

I have still not received a date for the appeal hearing, and I am becoming very annoyed at the length of time they are taking.

 

At the appeal hearing they are going to have to admit that the report written by my line manager contains incorrect information.

 

Therefore I assume that they cannot re-assess the appeal based on the actual real information, since I am appealing the decision that was made based on the incorrect info. I also assume that they cannot now take anything else into consideration.

 

I cannot find any information online about my rights at an appeal hearing.

 

I also want to know if I can refuse my job back if offered, as I want to pursue a claim for loss of earnings, and the fact that I would find it difficult to return to my previous role.

[DRR]

I have just submitted the online ET1 form and received confirmation that its been received by the East London office, its now August 30th and I have still not received a date for my appeal hearing. This is getting beyond a joke now, I seriously believe they are running around scared trying to cover their backsides and get a strong case together.

 

I may also try the ACAS pre claim conciliation route to see if that brings any results.

[Scouse Paul]

I would file a grievance about the length of time it is taken them to get back to you as there is a legal time frame for which they have to deal with the grievance

[DRR]

Update:

 

After sending my tribunal claim off in September I received an acceptance notification from them, and then finally after badgering my workplace about when the appeal hearing would be they finally gave me a date which was for last week. I also received a reply from the solicitor they had appointed to defend their case, this basically said that they disputed my claims and as far as they were concerned I was NOT dismissed unfairly. the tribunal accepted this response and said I would receive details of the tribunal hearing shortly.

 

However since then I attended the appeal hearing with work, and ended up tearing apart their defence by highlighted numerous errors in their figures and also in how the way they dealt with me that went against their own sickness policy.

 

All 4 of my appeal grounds were upheld by the panel and they re-instated me, and said I would receive full back pay with effect from my dismissal date.

 

I have received confirmation of this in writing, and they have said they will write to me with further details of when I can start back at work.

 

However, as they have now admitted their errors and I have been caused nothing but stress & humiliation from being sacked. I have had to sign on for job seekers allowance and search for new jobs etc. This whole thing has also caused my wife stress, who then gave up being a full time mum, to get a part time job to help pay the bills.

 

I want to know if anyone thinks I have further grounds for pursuing a compensation claim against them, as it was technically either wrongful or unfair dismissal and they have now admitted their errors.

[DRR]

Hi, I recently won an appeal against my dismissal - (see my previous thread for details if required)

 

I have received written confirmation that I have been reinstated, and was told to wait further details on when I could start back.

 

I had assumed that this would be back at my usual place of work, but today I have received a letter stating that the area manager does not think it is appropriate that I return to my old office, and instead they are looking to place me in the same job at a different site. Whilst I'll be placed in an administration role, it may not be the exact same job as before as different departments require different knowledge, therefore I will have to also learn about the new departments procedures etc.

 

My original dismissal was due to capability over my sickness record, however my line manager did not follow the correct procedures and I highlighted this at appeal. I am 90% certain that the reason they do not want me to return there is because of the issues between me & my line manager.

 

So far I have emailed HR stating that I do not wish to move to another department, and that I would be writing to them shortly with a more detailed response.

 

I believe this is unfair, I have rang ACAS who couldn't advise on if it was lawful or unfair etc, so before I seek legal advice, does anyone have any idea if this seems fair, and if I have grounds to be reinstated at the office I was previously at?

 

Any advice would be appreciated.

[daggersedge]

Do you have any problems getting to the other site? If not, then perhaps it is a good thing that the company wants to move you. Look at the situation from HR's point of view. HR is trying to deal with the problems of two people: you and your former line manager. If HR separates the two of you, then the issues between you go away. You are given a fresh start in another department and your former line manager is given a fresh start with another employee. If, however, HR keeps you together, it will probably see problems come up because of the dismissal and re-instatement. HR may just feel that there is too much water under the bridge between you and your former line manager.

 

If you won't suffer any inconvenience, if your pay and conditions stay the same or basically the same, it might be a good idea for you to write to HR and tell your contact there that you have re-considered and you will be glad to move. Think: which will be worse? Going back to the same department working under a line manager who will almost certainly be hostile to you or going to a new department and learning new procedures?

Edited October 20, 2011 by daggersedge
spelling error

[daggersedge]

Hi thanks for the reply, I do not wish to have to move to a new location as when I took the role it was mainly based on location as it was very local to me (15 min bus ride).

 

I have also alot of good friends at the office, as I have worked their for 4 years and I feel that it has been proven that I did nothing wrong, and if anyone should be moved it should be her.

 

So how far is the other location from you?

 

I appreciate that you feel that you have done nothing wrong and that your former line manager is the one who should be moved, but you have to face reality. The good news is that you have your job back. Given the state of the British economy, this is a very good thing indeed. Yes, you have good friends at your current location, but you have one great big enemy there, too, and that is your former line manager. There is probably no way that you can make the company move her to another department.

 

I just can't see any tribunal coming down on your side: you have been re-instated and HR is trying to deal with the problem. As I said before, HR has to deal with the problems of 2 people: you and your former line manager. HR can probably come up with a business case that it was easier to move you than the manager.

 

Maybe I'm wrong, but I can't see any way forward but for you to get a fresh start in a new department or for you to find a new job. Yes, it feels unfair to you, but sometimes you just have to make the best of what you have.

[DRR]

I will be lodging a grievance over this decision.

[papasmurf1cx]

I have just read this entire thread and to be honest I agree with daggeredge... I personally would try and keep my head down, but you obviously feel different.

 

I was struck by the fact that your sickness record was significant and even though you won your appeal, and good on you for doing so, I think as an employer I would be telling your new manager to closely watch you and your sickness issues for the future. I doubt whether the company and management will want to make the same errors. So I would be careful for the future.

 

I doubt whether a Tribunal would think that shifting you was an unreasonable thing to do. Of course you are entitled to place a grievance in and I hope that if you do you have as much success as you did before but if you do succeed and you are not shifted I am certain that you will continue to have problems and the errant manager will bide his time and pounce when you make the next mistake. He may even 'engineer' a set of circumstances which you will fall foul of and discipline you. The company will back the manager up, they almost always do (you win being the exception).

 

I understand your anger and desire to obtain compensation, but I cannot see where a court or Tribunal would see where there was a loss and compensate accordingly. The procedures worked.. you won the appeal and had back wages reinstated. I don't know if you have ever tried to obtain compensation from an employer or insurance company, take it from me it is very stressful and to be avoided if at all possible. If you are forced into fighting so be it fight as best and as hard as you can, but if you can avoid it too then that would be good.

 

My advice, don't put the grievance in, and move to new location and keep your head down.

[DRR]

Quick Update:

 

Well its now April 2012.

 

Back in late November work asked me to choose between 2 locations that were unsuitable and a distance I was not prepared to travel to each day. I told them I would choose, in the end they picked on for me and said I was to start on 1st December 2011. To date I have been getting signed off with stress. My wife suffers from a anxiety disorder and sometimes needs my assistance, therefore I need to be working close to home. I have been to occupational health and they also agreed that in an ideal situation I would be placed somewhere local to me. Work have agreed to pay my extra travel costs, which is something but does not really aid the matter. The Tribual have asked if the matter has been resolved, I have replied saying No, and works solicitor has replied saying Yes. My feeling is that the Tribunal will not want to proceed with the case as technically work have re-employed me, but I have waited so long for hearing I am not going to give up now. It's my intention to return to work under "duress" as I will be reduced to SSP only from May.

 

I have not been given any explanation of how the mistakes were made, my old manager is still in her job and basically I am the one that was unemployed for 3 months and is now forced to go travel further to a location and office that I will hate.

 

I really wish they didn't "reinstate" me at my appeal hearing, as I would have preferred a payout from the Tribunal. However the fact that I went there and had a senior manager trembling as I took them to pieces and had all 4 grounds upheld was quite spectacular.

 

I will be looking to get out of there as soon as I can find something better.

[becky2585]

The employment tribunal no longer has jurisdiction to hear the claim, as you were reinstated. If its a reinstatement by law (as in, appeal overturned, and paid for the three months you were out of work) then no dismissal ever legally occurred, so there's no claim.

 

If you weren't paid for the three months in between then technically a dismissal may have occurred and you could continue the claim.

[assisted blonde]

Am I right in thinking that since you were reinstated you have been off sick? I do think your employers are tryint their best, you have been reinstated, i assume you have been paid, they have not only offered alternative places for you to work but have said they will pay the extra travelling costs. You dont know that you will hate the new office if you havent started work there yet, although you may think you will thats not a good attitude to go in with.

 

Although you havent been given an explanation as to how the mistakes were made the company have obviously accepted that mistakes were made.

 

My concern is that if the original dismissal was due to competency owing to the number of days you had had off sick, thenm being off sick again now could lead to them dissmissing you again and I expect that this time they will not make any mistakes on the number of days.

 

To be fair I dont see how an employer can continue to hold a job open indefinatly if someone is off sick for a lot of the time, the work has to be done by someone and if you are not there then they will either have to employ an extra member of staff and that will probably not be cost effective, or someone else will have to do your work and that isnt fair on them.

 

You have not said why the alternative offers were not in your opinion suitable or how far from home you were expected to travel perhaps if you could tell us then it would make things a bit clearer and enable other people to advise you as to whether the alternative offers were reasonable.

[daggersedge]

Quick Update:

 

Well its now April 2012.

 

Back in late November work asked me to choose between 2 locations that were unsuitable and a distance I was not prepared to travel to each day. I told them I would choose, in the end they picked on for me and said I was to start on 1st December 2011. To date I have been getting signed off with stress. My wife suffers from a anxiety disorder and sometimes needs my assistance, therefore I need to be working close to home. I have been to occupational health and they also agreed that in an ideal situation I would be placed somewhere local to me. Work have agreed to pay my extra travel costs, which is something but does not really aid the matter. The Tribual have asked if the matter has been resolved, I have replied saying No, and works solicitor has replied saying Yes. My feeling is that the Tribunal will not want to proceed with the case as technically work have re-employed me, but I have waited so long for hearing I am not going to give up now. It's my intention to return to work under "duress" as I will be reduced to SSP only from May.

 

I have not been given any explanation of how the mistakes were made, my old manager is still in her job and basically I am the one that was unemployed for 3 months and is now forced to go travel further to a location and office that I will hate.

 

I really wish they didn't "reinstate" me at my appeal hearing, as I would have preferred a payout from the Tribunal. However the fact that I went there and had a senior manager trembling as I took them to pieces and had all 4 grounds upheld was quite spectacular.

 

I will be looking to get out of there as soon as I can find something better.

 

The problem, as I see it, is frankly, that you are taking off an awful amount of time sick. How long do you think your employer has to put up with this? Why is it that you think it is unfair for your employer to expect you to come in and do the job you were hired to do?

 

I realise that your wife has problems, but, to put it bluntly, these aren't anything to do with your employer. If you wish to stay in a job, any job, you need to find a way to solve your wife's problems so that you can actually go to work. Perhaps working for yourself might be the answer.

 

As well, you were looking for a payout rather than reinstatement. And if you had had that payout, what would you do when the money ran out? Employers are very adverse to hiring people who have taken their employers to the tribunal. After the money ran out, you might have found yourself unable to find other employment.

 

I suspect that the 'something better' you are looking for doesn't exist: an employer who pays you no matter how much time off sick you take.