Fairly urgent - tribunal advice needed

[kingofrod]

Hi all, first post here and pretty desperate for some advice. Seem to be a lot of knowledgable people kicking around here so hopefully I'll find someone with some words of wisdom for me!

 

BE WARNED - this is lengthy as hell!

 

Worked for my employer for about 10 years.

 

In that time my attendance and performance record was exemplary. Not a single day off work due to ill health, only late on one occasion.

 

There are two parts to the story relating to my dismissal.... My apologies that this is a VERY lengthy post.

 

PART ONE : There was a member of staff in the office I really didn't get on with. There were never any cross words and we were always professional, but there was an element of tension there. Anyway, at a company party, she made a horrendous comment about me within earshot. I was with some customers of the company at the time and they also heard the remarks. I refrained from having a go back, but I did express my disappointment on my Facebook profile. I was rather rude about her, but I was drunk at the time and I feel the comments I made were under duress. The next day I posted an apology on my Facebook.

 

Many of my customers, because I was a regular caller at their stores selling my company's products, were on my personal Facebook. We had good relationships. The company claims that my post on Facebook brought the 'good name' of the company into disrepute.

 

I arrange for one of the biggest customers of my employer to give me a written reference confirming that he didn't feel that way at all, and praising my performance.

 

PART TWO : About 18 months ago I moved from the company's Manchester office to its office in Dorset. When I made the move, I also had to sign a new contract and while I'd previously been allowed to 'stock pile' annual leave, the new contract dictated that I was no longer allowed to do this.

 

The company told me I was going to lose the leave but I contested this and came to an arrangement with two of the senior managers there. The arrangement was that they would help me use my leave wherever possible. For the next few months, whenever I needed some time off I would send the managers an email asking to use some of my leave and EVERY TIME this leave was granted.

 

Regularly, upon sending an email, I would get no acknowledgement of its receipt NOR any acknowledgement that the leave had been granted (even though both of these were true).

 

In short, in my opinion, an informal 'procedure' had been established between myself and the two managers.

 

Here is where the fun begins.

 

In June of 2011, the company told its staff it had too many customer service managers for the months of August and September and offered said managers (myself included) and opportunity to take the two months off as unpaid leave. I applied for both, and was immediately granted August. September, however, was not granted.

 

During the month of August, for which I was absent from work, my uncle in Manchester (for whom I'm a carer) had a bad fall and fractured his pelvis. It meant he was bed ridden for most of August and September.

 

Following the accident and upon realising that he would require a high level of care, I contacted the two senior managers with my employer and asked them for the time off - the month of September. I also contacted the company's main HR office to explain the situation to them and to arrange for the time off.

 

Neither of the managers responded to me but, owing to the precedent that had been set previously in relation to my taking time off, I thought nothing of it. ADDITIONALLY, given the seriousness of the situation in Manchester, I knew I needed to take the time of regardless. On this occasion, despite no response from either manager (the usual indication that time off WAS granted), they did not agree to give me the time off and so I did not report for work in Dorset when they had expected me to.

 

It took them two days, however, to call me to find out where I was.

 

When I spoke to them, I explained the situation and they suspended me immediately.

 

As my job in Manchester/Dorset was part time, I also had another part time retail job in Manchester that I would do while not working for my primary employer.

 

During August, while on "unpaid leave" (which I was paid for, as it was agreed I would use my banked annual leave to take this month) I worked increased hours at the part time job in Manch as I knew I wouldn't be earning my usual commissions at the main job. I did the same in September.

 

The company has accused me of providing misleading information to take time off work to work extra hours at my other employer. They say that this is neglect of duty, unauthorised absense and ALSO accused me of failing to tell them that I had a second job.

 

They also accuse me of not following their procedures for getting time off work. These procedures are ONLY AVAILABLE on the company intranet but my job was road-based and I was not provided with the means of accessing the internet while on the road (no laptop). No paper copy was ever provided. I've been told this could work against the employer, as it didn't make the procedure documents available to me?

 

Fast forward a week or so and I'm sent a letter by the company inviting me to the Dorset office for a disciplinary hearing. In the letter I'm told that I have the right to be accompanied by a UNION REP or a COLLEAGUE. I'm not a part of the union and so I consider which colleague I might like to take with me.

 

The next day, however, I get another letter from the company saying that I am NOT ALLOWED TO DISCUSS THE SITUATION WITH :

 

ANY CUSTOMER or POTENTIAL CUSTOMER

ANOTHER EMPLOYEE

ANY SUPPLIERS TO THE COMPANY

 

This put me in a lot of doubt as to exactly who I could speak to. My family and friends all buy products from this company (a major high-street retailer) and so it could be argued that I wasn't even allowed to talk to THEM about what was going on. I felt isolated and alone.

 

I attended my first hearing - more of an interview, to be honest - and presented a letter from my uncle's GP confirming that he'd had an accident and also suggesting that it would be appropriate for me to take time off work to stay in Manchester to care for him. At the end of the meeting I was given a typed up copy of the minutes to sign off as being accurate.

 

About a week or so later I attended the formal disciplinary meeting after which a decision would be made.

 

The meeting went OK but, again, I was unaccompanied as a result of the confustion over whether or not I was actually allowed to invite anyone to accompany me. I admit that, in hindsight, I should have questioned this BUT I was pre-occupied with a still ill uncle and the prospect of losing a job I loved for a company I loved.

 

I got a call from the hearing manager to read his outcome letter to me (this was sent to me by post, non-Recorded, and arrived with me about eight days after the hearing when company policy dictates that it should arrive within seven). In the end, the decision was to fire me with immediate effect. No notice period etc. The claim was that I was guilty of gross misconduct.

 

The manager found me 'not guilty' of failing to disclose the second employment to the company AND said that, had he only been considering the alleged bullying & harrasment 'charge', he'd have given me a final written warning only.

 

I lodge my appeal within the seven days allowed, as detailed in the company's internal policies.

 

The manager who is set to hear my appeal makes contact and we arrange a time and place to meet. I have to get my way to Dorset for the meeting but, because of the difficult in getting there (needing to get a train), the meeting is not held within seven days so this fell outside the timeframes allowed. This was mutually agreed.

 

I went in to this hearing and, before we began, I was asked if there were any comments I'd like to make in relation to the previous hearing and the outcome. I expressed my surprise that the former manager would be prepared to essentially overlook a bullying & harrassment 'charge' considering the company's extremely firm standpoint on B&H. The appeal manager said "I'd have sacked you on the spot if I were the first hearing manager".

 

I was stunned. Here I was about to undergo an appeals hearing and the manager leading it has bascially just told me that I've absolutely no chance of the decision being overturned. I was of the impression that appeals hearings are meant to be somewhat impartial, unbiased and are supposed to give one a fair chance?

 

Anyway, the hearing draws to an end. I'm asked if I would like to outcome to be emailed to me (as well as sent by post) and I agreed. At no point, however, was it confirmed that an email would constitute formal notification of the outcome of the hearing. Until this point ALL official correspondence had been by post and all of my letters had been sent Recorded.

 

I think it was about 19 days after the appeal that I contacted the company to tell them that I had not yet had any notification of the outcome. They claimed to have emailed and sent the letter to me within seven days (as per their policy) of the hearing date. I ask them to prove it, with Recorded Delivery slip etc, but they are unable. They immediately email the notification and I start work on my appeal letter. I send this to them within seven days of recipet of their letter, which this time they had sent Recorded.

 

they recieved my letter and contacted me to tell me that I'd missed the deadline to continue the appeal and that they were closing the case. They also asked why I didn't contact them previously for notification. I responded telling them that, as far as I was concerned, only the PAPER copy of their letter was formal notification and that I had replied to that within seven days. I also told them that I did NOT consider it my duty to remind them of their obligation to comply with their own policy and that I had other things to occupy myself with, including finding another job.

 

They maintain that I have missed my opportunity to appeal further and proceed with closing the file.

 

The company claims that I told them it would be OK for the notification to come late but I do NOT recall giving this authoriation. Although notes exist on the minutes of this meeting, they were NOT signed/athorised by me and so I question their accuracy.

 

By this point I'm within a week of the three month Employment Tribunal deadline anyway, so I have no time to fight with them further and I submit my ET1 form.

 

I speak to a solicitor in Newcastle, on recommendation from my insurance company, and consider using them to represent me. The solicitor I speak to writes back to me after about three weeks and tells me she doesn't like my chances of winning. I disagree and am put off by the fact that I wasn't able to meet the solicitor face-to-face to discuss things. All I can really give her is the file of 'evidence' from the employer and my own notes. I decide against using this solicitor and am now considering my options - possibly going it alone.

 

The solicitor claims that, because the employer did not 'find' the allegation that I didn't declare my second job AND said that they'd have handed down a written warning only for the B&H allegation, the tribunal would see that the employer had been considerate of all the circumstances and not just handed down punishment for all charges.

 

She also said that, of my complaint that I wasn't allowed to appeal further, the employer would argue that any further appeal would have been pointless as they wouldn't have changed their mind. This, like the incident in the final appeal, astonishes me. What's the point in having an appeals process if there's no chance of the employee actually being allowed fair opportunity to put his/her point across?

 

The solicitor did highlight that there was NO EVIDENCE that I gave misleading information to get time off work, which is one of the employer's main complaints, but she said this was irrelevant as the tribunal's job is not to decide if the employer was right or wrong, but is to decide whether the 'punishment fits the crime'.

 

While the solicitor had my 'file', I missed one of the deadlines set out by the ET people. I had to submit a statement of loss & remedy by 13th Feb but I missed it by about five days. I have now sent this document, however.

 

My employer's solicitor have contacted the tribunal people asking that the case be thrown out because I failed to comply and I have seven days to appeal.

 

I called the tribunal people for some information about whether my Statement of Loss would constitute an appeal against the request to throw the case out but they say they cannot advise me on that?

 

As I had my second job I was able to minimise my losses completely so my Statement of Loss actually showed £0.00. As for the remedy, I've asked to have my job back, any record of this situation removed from my file AND my staff discount returned.

 

That's about it for now boys and girls. My apologies again that this was a lot of reading, but I hope someone might be able to offer some advice.

 

A few specific questions, if I may :

 

1) At what point does ACAS get involved

2) What are the chances of this actually getting to tribunal / could an out of court settlement be an option? I've been told that many ETs don't actually get to the tribunal stage itself?

 

Thanks VERY MUCH for taking the time to read over this guys. I very much appreciate it.

[mariefab]

In the letter you received, what reasons are given for the decision to dismiss you?

[DanscoCAB]

Wow that was a long post! As far as I know ACAS should already be involved as they are part of the ET. Why not contact them now to find out?

 

As for your chances, personally they look slim. The company can argue that several forms were late and get the case thrown out. You could just keep going and see what happens or just give up and walk away as you got screwed over...

[kingofrod]

Wow that was a long post! As far as I know ACAS should already be involved as they are part of the ET. Why not contact them now to find out?

They are involved to the extent of having sent me a letter saying "we'll be in touch in due course". That's it, so far. I have emailed ACAS but got no response - I assumed because they were/are busy and the email was not at all pressing?

 

As for your chances, personally they look slim. The company can argue that several forms were late and get the case thrown out. You could just keep going and see what happens or just give up and walk away as you got screwed over...

Forgive me, but what forms were late? There's the form to the tribunal, but having spoken to an employment lawyer I'm assured that this isn't a huge deal and unlikely to see the case thrown out.

 

ADDITIONALLY, the solicitor for my employer has just applied to have the case re-scheduled to be a two day hearing. I have the right to appeal against this, and I do want to as I don't think it should take two days. NOR do I want to be away from my new job for any longer than I have to be.

 

I think the solicitor is playing funny buggers to an extent and trying to intimidate me.

[kingofrod]

In the letter you received, what reasons are given for the decision to dismiss you?

Hi Marie,

 

It was a four page letter outlining their reasons. To try and compact it a little :

 

For the B&H they said that they found the comments abusive and offensive in nature but they did recognise that the comments were made while under the influence and following a nasty comment having been made by my colleague.

 

In terms of bringing the company name into disrepute, they say they don't believe that it hasn't done. DESPITE them specifically naming the client I got the reference from in my initial hearing, they said that just because he said he didn't feel any differently about the company, doesn't mean nobody else would. I asked them to provide that anyone did feel differently (negatively) but they refused, saying they only had to believe that someone could.

 

In terms of neglect of duty, they say that I didn't contact the company through official channels to request time off work, to tell them of my mother's accident or to tell them I'd be working at my second job during my time off. I'd argue that I used channels I had previously used and that had previously been absolutely appropriate. I was given no reason to believe that THIS incident would be any different to any other time that I'd asked for time off by contacting the managers.

 

I would also argue that I DID contact the HR department, although the company says no record of this call exists.

 

I would suggest that, owing to the fact that they have admitted administrative errors in the handling of my declaration of a second job AND some admin errors in their investigation, it's VERY possible that a further admin error meant that while my call DID take place, the company failed to keep track of it.

[mariefab]

OK, let's see whether we can narrow it down somewhat, because if they contend that there was a fair reason for your dismissal it's only reasonable that you should be able to identify exactly what the gross misconduct consisted of.

 

When did the facebook B&H incident take place?

[kingofrod]

OK, let's see whether we can narrow it down somewhat, because if they contend that there was a fair reason for your dismissal it's only reasonable that you should be able to identify exactly what the gross misconduct consisted of.

 

When did the facebook B&H incident take place?

Hi Marie,

 

This took place in May. The first I heard of any complaint, however, was in early September.

 

Thanks for your time with this!

[mariefab]

Just to be clear,

In May you posted something rude about a colleague on Facebook.

The next day you posted an apology.

Did your employer know about this in May?

[kingofrod]

That's correct, Marie.

 

Did the employer know about it in May? I'm not entirely sure.

 

Then information I had suggests that on the 17th August MY direct line manager was contacted by the direct line manager of the person I was involved in the unfortunate exchange with to inform her of the situation and to tell her that her team member had made a complaint. This would suggest to me that nothing was done about this for quite a few months, as the company usually moves very quickly on things like this. I heard nothing of this, however, until the 7th September.

[mariefab]

At the disciplinary hearing, did you ask a question on the lines of, 'Why is the B&H and potential disrepute issue being raised 3+ months after the incident and apology?'

[kingofrod]

Unfortunately, no - I didn't.

 

I suspect they'd just say "does it matter how long after the incident the complaint is made?"

 

Or perhaps be more assertive - "it doesn't matter how long after the incident the complaint is made."

 

I did, however, raise doubts about a number of the things this person said in her statement to the company. Losts of inaccuracies there, but really my word against hers.

[mariefab]

It makes me wonder whether the issue was actually raised only after you were suspended so as to bolster the disciplinary case against you.

 

You should be able to use the 'disclosure of documents' stage of the Tribunal process to discover if this is what happened.

When they send you their list of documents, if there's no documentation about this complaint before the date of your suspension on the list you should ask them to provide you with a copy of the missing information.

 

If this isn't then forthcoming it adds weight to the implication that it was added to increase the justification for dismissing you.

After all, as far as you were concerned it was done and dusted months earlier and although you provided evidence that it hadn't (in a customer's eyes) brought the Company into disrepute they didn't submit any evidence to the contrary. Instead indicating that it had the potential to do so.

 

You did remove the offending post on Facebook immediately before apologising didn't you?

[kingofrod]

It makes me wonder whether the issue was actually raised only after you were suspended so as to bolster the disciplinary case against you.

 

You should be able to use the 'disclosure of documents' stage of the Tribunal process to discover if this is what happened.

Well having had another look over the documents I have here, the other manager contacted mine on 17th August to say that a complaint had been made. The statement was taken from the girl I'm alleged to have Bd&Hd on the 12th September - five days after I'd been suspended.

 

What actually happened on the 7th was that I got one call from my manager asking where I was (I had failed to go into the Dorset office on the 5th, 6th and 7th). I explained the situation to her and she said she'd look into it and get back to me.

 

On the 14th September I get another call from the manager. On this occasion she tells me that another serious matter had come to light (referring to B&H) and informing me that she had no choice but to suspend me immediately.

 

You should be able to use the 'disclosure of documents' stage of the Tribunal process to discover if this is what happened.

When they send you their list of documents, if there's no documentation about this complaint before the date of your suspension on the list you should ask them to provide you with a copy of the missing information.

I have a complete copy of their file against me. It's really quite detailed. It includes witness statements etc.

 

When they send you their list of documents, if there's no documentation about this complaint before the date of your suspension on the list you should ask them to provide you with a copy of the missing information.

I am lead to wonder why they waited until 12th September to interview the other employee. It does seem, as you suggest, that they recognise the absense as not being enough to 'get me' on and so they took the B&H claim further to get something else on me. Otherwise, why would I have heard nothing about it before the 14th Sept?

 

After all, as far as you were concerned it was done and dusted months earlier and although you provided evidence that it hadn't (in a customer's eyes) brought the Company into disrepute they didn't submit any evidence to the contrary. Instead indicating that it had the potential to do so.

It makes me regret not reporting him to the company before he reported me. Like you say, though, I thought it was all done and dusted - an unfortunate incident we could put down to just, well, poor taste?!

 

....although you provided evidence that it hadn't (in a customer's eyes) brought the Company into disrepute they didn't submit any evidence to the contrary. Instead indicating that it had the potential to do so.

The company will continue to argue that they don't have to prove that it DID bring the name into disrepute, only that it COULD. I have a number of other customers on my Facebook - is it worth me contacting them to ask for similar references?

 

You did remove the offending post on Facebook immediately before apologising didn't you?

I did.

[mariefab]

There's no benefit in contacting other customers for similar references so long after the event.

 

Given that you removed the offending message the day after you posted it, I assume that the complainant printed a screenshot in the short time it was live.

As they allege that they felt bullied and harassed by the offending post what explanation, if any, was given for holding on to this evidence for 3+ months (after it was removed) before making a complaint.

[kingofrod]

Hi Marie,

 

When I hit fifteen posts, I'll send you a PM with a wee bit more information to clarify things.... It might give you a better idea of the situation. It's very much as you see above, but there are one or two things I've missed out deliberately.

 

And yes, the file I have contains a variety of screen shots of the posts that were made.

[honeybee13]

Hi Marie,

 

When I hit fifteen posts, I'll send you a PM with a wee bit more information to clarify things.... It might give you a better idea of the situation. It's very much as you see above, but there are one or two things I've missed out deliberately.

 

And yes, the file I have contains a variety of screen shots of the posts that were made.

 

Hello there.

 

Please be aware, as I'm sure mariefab is, that advice by PM is only suggested here for information that is seriously confidential. Otherwise, advice on thread is your reassurance that information given to you is open to scrutiny.

 

My best, HB

[kingofrod]

Hello there.

 

Please be aware, as I'm sure mariefab is, that advice by PM is only suggested here for information that is seriously confidential. Otherwise, advice on thread is your reassurance that information given to you is open to scrutiny.

 

My best, HB

OK, I'll take a punt!

 

The person I'm accused of B&H had been based in the Dorset office for about five years. He had lots of friends there, of course. When I was transferred to the Dorset office, it was to take the job of someone who had been fired for one reason or another. The reception I got was decidedly frosty.

 

When I made my comment on Facebook a screen shot was taken by one of his friends who was at home ill. Whether the person saw the post himself or not I'm unsure, but I'd be very doubtful as I deleted it very shortly after having posted it. The Dorset Mafia, however, were on the ball with it. Indeed, as far as I'm aware people at the party were getting phonecalls from those not at the party telling them what I'd posted.

 

The person in Dorset whose job I'd taken was a former union rep and so the union didn't much like me either. I've never been a big fan of unions so wasn't a member. The guy from the party, however, was a member and the union assisted him in bringing the complaint against me. But again, the statement from the guy and the union only came on 12th September. I cannot understand why nothing was done before this date considering both his manger and mine knew of the situation as early as 17th August.

[kingofrod]

I've just had a request from the respondent to extend the hearing to two days, which I've objected to.

 

Could they be playing funny buggers with me and trying to intimidate me/deter me from proceeding?

 

ADDITIONAL INFO : The company has accused me of providing misleading information to take time off work to work extra hours at my other employer. They say that this is neglect of duty, unauthorised absense and ALSO accused me of failing to tell them that I had a second job. They question how I can take time off to care for my uncle BUT work at my part time job in that time. I explained repeatedly that my uncle didn’t need someone at her bedside 24/7, but he DID need the ability to GET someone to his bedside 24/7. While at ‘work’ I would regularly be called away to head home to help him (cleaning, lifting, etc….)

 

[kingofrod]

NEXT STEP : Hi again guys.

 

Next step for me is to submit a list of documents. Does anyone have any advice in relation to this? What format should the list be in, and what sort of documents should I include?

 

Thanks

[becky2585]

How many witnesses will,be attending? If its four or more including yourself, it would almost certainly need a two day hearing to deal with all the evidence!

 

You should disclose all documents which are relevant to the case, whether they help you or adversely affect your case. A dated list with the title of each document would do at this stage. You should include your contract, relevant company policies, and correspondence between you and the company at the very least.

 

If you are seeking re engagement, I have to warn you the chances of this happening are almost nil. Ive only once seen this remedy awarded, and even then, the employer refused to take the claimant back.

[becky2585]

Incidentally, if the Tribunal has put you on a strike out notice, it's imperative that you respond within the timescales set. Merely putting forward your Schedule of Loss is not adequate, you have to reply to the Tribunals correspondence, copying it to the other side, apologising and informing them the document has now been sent (albeit a little late).

[kingofrod]

Hi Becky,

 

To be honest, I'm not planning on calling any witnesses. Will that hurt me?

 

I will be submitting statements, though.

[kingofrod]

Incidentally, if the Tribunal has put you on a strike out notice, it's imperative that you respond within the timescales set. Merely putting forward your Schedule of Loss is not adequate, you have to reply to the Tribunals correspondence, copying it to the other side, apologising and informing them the document has now been sent (albeit a little late).

I didn't get ANYTHING from the Tribunal, only an application from the respondent to have the case struck out, which I have now responded to.

 

I've had nothing from the Tribunal since the initial letter confirming the date.

 

Sound normal??

 

Cheers again

[becky2585]

I always find it useful, but not imperative. I presume the Respondent is likely to call witnesses, so if they have two or three, that's likely to mean a two day hearing, but they would hopefully deal with remedy too, if appropriate of course!

[becky2585]

Ah I see. Well making a strike out application is a standard tactic, and not one to be concerned about until the tribunal provide you with a notice that they are proposing to strike out the claim, or an unless order.