Internal investigation/employment tribunal

[Marieleeza]

Hello everyone,

 

First time poster here but I hope some of you will be willing to help with some advice.

 

I am taking my employer to tribunal for dismissal (the hearing is in April). At the same time I filed my claim they were conducting an internal investigation into the circumstances surrounding my leaving (I had to file when I did rather than wait for the results of their investigation because of the 3 month time limit).

 

The results of the investigation were sent to me this week. It appears that, rather than an independent investigation, which was what I was promised, it was instead used as an evidence-gathering exercise for their side of the argument. I strongly disagree with some of the points made in their findings, and they did not follow up several important points I made which would have made them look bad. They also peddle a lie in their findings which I have documentary evidence is a lie.

 

In about a week we have to send each other all the documents etc our case relies on anyway, as per the tribunal schedule.

 

Should I reply to the investigating officer disputing his findings, and giving my evidence, repeating my points etc, or should I save this for the tribunal (i.e send them the particular document that disproves their lie and then wait and see if they make the connection before the hearing)?

 

On the one hand I don't want to show all of my hand now, but at the same time the sooner they realise that I have a strong case then they sooner they may be willing to consider conciliation.

 

Does anyone with a legal background or experience in this kind of thing have any advice? It would be gratefully received.

 

Oh, and if it's relevant I am representing myself because my claim is fairly small (low four-figures) and I am not entitled to legal aid.

 

Thanks!

 

Have you considered making a furhter ET claim for "victimisation after a Protected Act" - that means that they victimised you because you made an ET claim?

 

If you have evidence to show that the investigation was unfair and unreasonable you may win this part of your claim even if you lose the dismissal part

 

As your hearing is scheduled for April you will need to be swift. Your 2nd claim can be consolidated with the first and both can be heard together in April. The Respondent gets 28 days to lodge a defence so you would not receive that until mid March so time is tight.

 

Victimisation after the Protected Act reverses the burden of proof so the Respondent would be have to show that the shortcomings in the investigation were in no way inflluenced by your having taken them to the ET.

 

I am not qualified to give legal advice so you must speak to a lawyer first. This course of action was suggested to me by a lawyer I contacted through free legal aid. `She was the only one to support this course of action and I think, overall, it was sound advice. It did not seem to occur to the other lawyers I consulted.

[slowdowngandhi]

What do you mean by unfair and unreasonable? I was asked a lot of questions, but ones where I raised things which make my former employer look bad do not appear to have been followed up.

 

As for sick pay, I have not included this in my claim as I wasn't sure I was entitled to it (and didn't want to look like an idiot for making a stupid mistake like asking the ET for it if I wasn't). Can I add this on now? (I presume maybe not because it's a lot llonger than three months since they failed to pay it to me?)

Edited February 10, 2012 by slowdowngandhi

[Marieleeza]

What do you mean by unfair and unreasonable? I was asked a lot of questions, but ones where I raised things which make my former employer look bad do not appear to have been followed up.

 

As for sick pay, I have not included this in my claim as I wasn't sure I was entitled to it (and didn't want to look like an idiot for making a stupid mistake like asking the ET for it if I wasn't). Can I add this on now? (I presume maybe not because it's a lot llonger than three months since they failed to pay it to me?)

 

It means that, looking at it objectively, would a fair and reasonable employer have come to the same conclusion. Legally I think they say "within the range of reasonable responses".

 

In my case nothing was upheld despite clear breaches of worktime regulations - rate of payment etc - which was on the nose. In your case it seems that they trawled for evidence to attack your character - fishy fishy-

[Marieleeza]

What do you mean by unfair and unreasonable? I was asked a lot of questions, but ones where I raised things which make my former employer look bad do not appear to have been followed up.

 

As for sick pay, I have not included this in my claim as I wasn't sure I was entitled to it (and didn't want to look like an idiot for making a stupid mistake like asking the ET for it if I wasn't). Can I add this on now? (I presume maybe not because it's a lot llonger than three months since they failed to pay it to me?)

 

How long ago did you lodge your ET claim? Ideally your claim for victimisation after doing a Protected Act should be within 3 months of lodgement of your first ET claim but, given that you have just got the investigation results, you may be able to argue that you made your claim as soon as practicable.

 

I think that because you no longer work there you could skip the appeal phase - this usually reduces compensation - but not always.

[Marieleeza]

 

As for sick pay, I have not included this in my claim as I wasn't sure I was entitled to it (and didn't want to look like an idiot for making a stupid mistake like asking the ET for it if I wasn't). Can I add this on now? (I presume maybe not because it's a lot llonger than three months since they failed to pay it to me?)

 

 

In your second claim you could include

detriment after making a protected disclosure (if your grievance was about harassment it would be a protected disclosure)

 

and victimisation after doing a Protected Act - unfair consideration of grievance because you lodged an ET claim.

 

The timing of these things are crucial so let us know the dates

 

 

Sick leave

Dismissal

Lodgement of ET claim

Your grievance

Your grievance outcome

[slowdowngandhi]

Sick leave - accident was on the 8th May (not April, apologies). I was expected to work up until about the 22nd June but obviously could not so did not return to work until October (because it's shut over the school holiday).

 

Dismissal - I consider myself to have been dismissed by the 3rd October 2011 (because we had used the tactics I have outlined that were used on me against others in the past as a way of getting rid of them without going through formal dismissal procedures - I have witnesses who experienced this). However, I returned to work (in what turned out to be a junior position) from which I resigned on the 16th December 2011.

 

Lodgement of ET claim - 2nd January 2012.

 

My grievance - that my line manager had tried to get rid of me without formally dismissing me (because he couldn't have done) and that when I raised this with senior management I was allowed to return but only on an unjustified and indefinite probationary period and in (what turned out to be) a junior position. That my line manager was motivated because less than a week before all of this first happened (being taken off the rota etc) I had confronted him about the theft, and told him that if it continued I would be reporting him to the chief executive.

 

My grievance outcome - What I believe was a disciplinary was in fact a "performance review" and so didn't need to follow ACAS rules. That my till logon was wiped as an innocent mistake, and my email was "accidentally" missed off the list for communications (this is a mailing list and so things cannot be "accidentally" missed off - someone would have had to remove my name from the actual mailing list itself for me not to receive communications). That my allegations of theft against my line manager are being taken very seriously and have been investigated separately (it says nothing of the outcome, if there was one).

That my "senior" position did not exist because I do not have a contract for this (no, but I've got an email to the other supervisors confirming my promotion, and my wage slips/timesheets should support me in this. Apparently, any additional wages had been "inadvertently" processed by the accounts department (rather than being on a separate pay rate I was paid supervisor rate + a set number of additional hours every week. I wrote these at the bottom of my time sheet with "Senior Supervisor" written in capitals next to it). It's impossible that these were processed by accident -my line manager enters the hours on a spreadsheet and accounts pick them up from a shared drive. I know because I used to do them myself before he started. How would he not have noticed?!

 

Is the "protected disclosure" my line manager's theft? I'll look into those two phrases, thanks for the help so far!

[slowdowngandhi]

clear breaches of worktime regulations

 

Not sure if it's relevant but I've worked up to 94.5 hour working weeks without signing out of the working time directive, if that is applicable.

[Bigredbus]

Hi,

 

I have to second 'Mariefab' findings stated in post #25...

 

(a) As a general rule, a dismissal is not effective until it has been communicated to the employee.

(b) there are various ways in which a dismissal takes place...

(1) the contract of employment is terminated by the employer;

(2) a mutually agreed termination;

(3) invite the employee to resign, etc...

 

You cannot have been dismissed on 3 October 2011 and return to work under the same contract (re-instatement)

 

You cannot claim either victimisation in connection with a protected act as you lodged your claim after resigning your position.

 

However, between May 2011 (when your accident occured) and your return to work in October 2011 something happened which incited your employer to bring your hours to nil.

 

You say that you were expected to work until 22 June 2011... I assume that you had therefore been allocated a full set of duties up until that date.

 

Then between end of June 2011 and sometime in September, the workplace had closed down for holidays...

 

Did they allocate you a set of duties to work on your return?... and if yes, when were you informed of those duties?

 

You also need to post the positions you went through, with dates, please...

 

The grievance is left aside at present...

Edited February 10, 2012 by Bigredbus
Addendum

[slowdowngandhi]

Exact hours were allocated weekly, and mine did vary slightly, but I worked every week (unless specifically and otherwise agreed at my request - very rare).

 

As for duties allocated for return - they were not but I was expected to return as I had done the year previously. Staff were unless you told them you were leaving for whatever reason.

 

Positions I went through-

 

10th October 2009 - started employment as an assistant (entry-level position) in one part of the department

Autumn 2009 - started working occasional shifts at the same level in another part of the department, while still working as the assistant (this was because jobs in the bit of the department which originally employed me had wildly fluctuating hours, so they employed me in this too to try and even it out a bit for me)

Spring/Summer 2010 (I am waiting for people to get back to me to confirm more precise dates) - promoted to a supervisor in the second department I worked for. Continued working for the first department too.

Autumn 2011 - my line manager left work, and I covered a lot of the work, clocking ridiculous working weeks like the one I've mentioned to make sure things ran properly.

Autumn 2011 - new line manager started work

December 2011 - promoted to senior supervisor

April 8th - Accident

(You know the rest)

 

Sorry for the slightly confusing bit about bits of the department, but I'm aware this is a public forum and I don't want it finding it's way back to anyone. The easiest way to think of it is that if I worked in Tesco, then I started work in Groceries and got moved onto Clothing (doing shifts in both at times).

[Bigredbus]

Since you started in October 2009, had there been a week, or weeks when you were offered zero hour work?

[slowdowngandhi]

Yes, but not (as far as I can remember) since my most recent promotion (bar after my accident).