Has an employer to provide to the employee witness statements used to dismiss him

[id330uk]

In paragraph 9 of the “Acas Code of Practice on Discipline and Grievance” it is stated

“Inform the employee of the problem

9. If it is decided that there is a disciplinary case to answer, the employee

should be notified of this in writing. This notification should contain

sufficientin formation about the alleged misconduct or poor performance

and its possible consequences to enable the employee to prepare

to answer the case at a disciplinary meeting. It would normally be

appropriate to provide copies of any written evidence,which may include

any witness statements, with the notification.”

I would like to know if this means that the employer have to give to the employee any witnessstatements used against an employee during a dismissal

Edited July 1, 2012 by citizenB
increased font size for easier reading

[becky2585]

Yes, they should. Our firm once won a case on the fact that witness statements had been disclosed, but anonymised, under the old statutory procedures. Clearly, you can't have the opportunity to question the evidence or cross examine the statement givers if you don't know who they are or the content...

 

Again, though, under the new ACAS Code, it wouldn't make the process automatically unfair, but it would certainly be an argument towards unfair dismissal.

[stu007]

Hi

 

Have to fully agree with becky2585 you should have been given copies of all the evidence to be used at the Disciplinary Hearing including witness statements if these were used at the hearing.

[lbruk]

Whats the point in having them if they have not submitted them as evidence, unless the evidence is phoney or they want to cover up whats been said. They could tell you the contents of the statements and completely lie about them!

[id330uk]

I think that the role of ACAS code is to inform the employers who most of them are laymen of how they have to conduct a disciplinary proceeding so that to give a fair trial to their employees.

 

According to the new ACAS code which entered in force in 2009 breaches of ACAS code do not rend automatically anymore a dismissal unfair. I heard also that ACAS code is only guideline and does not have any statutor ybasis (except the right to be accompanied to a hearing). However I would liketo know if the principles set out in the ACAS code are not neverthelessc ompulsory because of article 6 of European Convention on Human Rights which says that anyone is entitled to a fair trial.

[becky2585]

Article 6 is an EU law statute. It has been interpreted into UK domestic law in the Human Rights Act 1998.

 

Article 6 can only be invoked if an employee is facing the possibility of being deprived of practising ether profession entirely - eg where a doctor/nurse is facing being struck off for life by a disciplinary panel. The right to legal representation then kicks in.

[becky2585]

But to answer your question, no, the ACAS Code is not compulsory and nor does a failure to follow it breach any human rights.

[id330uk]

I think that the issue is whether or not my civil rights are concerned during the dismissal proceedings because article 6 of the European Convention of Human Rights concerns the determination of my civil rights.

I think that my civil rights are concerned because the payment of my wages is concerned if I am dismissed. Especially during the time I found another job. In unfair dismissal proceedings in the Employment Tribunal the tribunal takes into account loss of earrings because of unfair dismissal. I think that it is why in the Schedule of Loss that we have to send to the Employment Tribunal we have to make mention to our earnings.

One thing which proves this is that in case the Employment Tribunal awards damages for unfair dismissal because of loss of earrings this award is enforceable in the Civil Court if the respondent refuses to pay. What proves that my civil rights are involved and as a consequence I should have be entitled to a fair hearing during the dismissal proceedings according to article6 of the European Convention of Human Rights.

I would like to know if I have a point and how I can put forward this to convince The Employment Tribunal

[Emmzzi]

I think you are confusing "internal HR process" with a trial. The ET is your trial. The internal procedure is not.

 

I think you are making a point relating to non payment of wages - that wouldn't make a trial unfair. Can you spell out your logic more clearly please because I do not follow your argument.

 

What are you trying to convince the ET of, using Human Rights statues? And I need to warn you, if you start waving laws about that you do not understand, they will immediately class you as a bit odd....

[altobelli]

You're entitled to a fair disciplinary process, but as per the above postings, the disciplinary process isn't a trial, so this particular part of the ECHR wouldn't apply. The right to a fair trial is the right to use the ET/County Court. The ACAS code is no longer mandatory, but if it isn't followed you can receive an uplift to any ET awards made. You could have entitlements under ECHR legislation if a decision made by HR impacts your ability to freedom of speech, freedom of association, or compromises your dignity, but this wouldn't appear to be the case here.

 

The standard of evidence and investigation required in a disciplinary process is not the same as that of a court - a forensic examination isn't needed, but all reasonable evidence and witnesses should be utilised.

 

If you have any doubts as to the fairness of the process, its best to raise these as early in the process as you can, before a decision is made, you can raise a grievance yourself if necessary if the process is unfair. Things to look out for would be where HR have a pre-decided outcome, this will manifest itself in refusal to address points or evidence which you introduce and a 'railroading' of the disciplinary without due process. Again, put in writing any concerns you have, stating clearly what you would like to be considered and why it relates to the disciplinary. If you work for a large company and the person dealing with the grievance is biased/inexperienced, you can ask for a different HR person to look at the grievance.

 

Can I ask what the dismissal related to?

[becky2585]

I do understand what you're getting at, but it has to be more serious to invoke it. You're not being deprived of the right to work, or earn money - you could walk into another job the next day, so Art 6 doesn't apply.

 

It would be similar to me demanding to invoke article 8 (right to family/private life) by asking my employer to let me spend time with my family whenever I felt like it!

 

The point is, it has limitations and the law is clear - Art 6 is only engaged if you're facing being struck off entirely.

[id330uk]

The respondent before filing his ET3 response form made an application for a pre-hearing. The Employment Tribunal replied to this application by writing a letter to the respondent telling him that before getting a pre-hearing he has to file his ET3 response form.

 

The respondent didnot file his ET3 response form within 28 days of receiving the ET1 claim form. As a consequence a default judgement was issued.

 

The respondent made an application to have this default judgement revoked. The Employment Tribunal revoked the default judgment because the respondent said that he received theletter from the Employment Tribunal in reply to his application for a pre-hearing telling him that he has to file the ET3 form when he was onholidays and was able to file his ET3 form only on his return i.e. after the 28 days deadline.

 

However the Employment Tribunal in its reasons accepts that the respondent received my ET1 claim form with a standard form letter requiring him to file the ET3 response form within 28 days and warning him that if he does not do so a Default Judgement can be issued against him.

 

In this circumstance I would like to know if I have enough grounds to make an appealagainst this decision to the Employment Appeal Tribunal under section 33(6) of the Employment Tribunals (Constitution andRules of Procedure) Regulations 2004 which says

 

"In considering the application for a review of a default judgement the chairman must haveregard to whether there was good reason for the response not havingbeen presented within the applicable time limit"

 

Because after all the respondent was aware because of the standard letter accompanying my ET1 form that he has to file his ET3 form within 28 days and went on holiday two weeks later without filing his ET3 form . He has preferred to prepare his holidays instead of dealing with my claim and filing his ET3 form

 

The respondent did not need to have received the letter from the tribunal in reply to his application for a pre-hearing to file his ET3 form ontime because he already knew that he has to file his ET3 form within 28 days because of the letter accompanying my ET1 Form.

 

This letter was a request for a pre-hearing and not for anextension of time. Hence the respondent was not expecting an extension of time.There has been no unforeseen or emergencies situation preventing the respondentto file his ET3 on time.

 

Moreover the judge did not have regard to the reason why therespondent has not filed his ET3 form between the date when he received the ET1 form and the date when he went on holidays two week later.

[becky2585]

Did you object at the time when the respondent asked for the default judgment to be revoked?

[id330uk]

Yes, I sent a witness statement where I opposed to have the default judgement revoked. Moreover during the hearing I said that I opposed the default judgement to be revoked and this is confirmed by the judge in his reasons of the judgement.

[id330uk]

I was dismissed because I made a complaint against a supervisor who was misbehaving.

 

As a consequence of this I made a claim for unfair dismissal and public interest disclosure (detrimental treatment) to the Employment Tribunal.

A default judgement was issued because the respondent filed his ET3 response form late which was revoked following an application of the respondent.

Moreover the EmploymentTribunal considered that I do not have a proper claim for public interest disclosure.

 

I lodged an appeal to the Employment Appeal Tribunal which rejected my Notice of Appeal against the revocation of the default judgment but accepted it concerning the Employment Tribunal’s refusal to accept my claim for public interest disclose.

There will be a full hearing at the Employment Appeal Tribunal concerning this issue only.

 

I would like to know if I can issue a Fresh Notice of Appeal under rule 3 (8) asking to have the respondent’s application to revoke the default judgement reviewed in taking into account this time that I have a proper claim for public interest disclosure.

 

 

For the reason that the respondent obtained the revocation of the default judgment by saying that he has a good defence because he claimed that I was not an employee and I did not have one continuity service.

 

 

However claims for interest public disclose are exempt from the one-year rule what decreases the strength of the respondent's defence and makes the revocation of the default judgment less justifiable

[Emmzzi]

"misbehaving" is really vague

 

What did your dismissal letter state as the reason for your dismissal?

 

Were you an employee or not?

[id330uk]

The supervisor did not record all the hours that I worked and cancelled my shifts without informing me in advance.

 

My employer has changed his mind concerning the reason for my dismisssal. I cannot say too much not to reveal the identities but during last hearing he said that it was because of misconduct. My employer accused me of having been rude to a client. However I known that the real reason is that I made a complaint against this supervisor.

 

The real problem that I have is to know what will happen to the default judgment if the Employment Appeal Tribunal uphold my appeal and concider that I have a proper claim for public interest discloure

 

In my last message I forget to reply to your question concerning whether or not I was an employee. There is a disagrement between my employer and me concerning this issue and this of whether or not I have one year of continuity service.

 

My employer have used these two issues to have the default judgment revoked because he says that I have no right to make a claim for unfair dismissal because of these two issues. However if I have a proper claim for public interest disclosure these two issues are irrelevant because public disclosures claims are exempt from the one-year rule. It is why I would like to know what will happen to the default judgment if the EAT consider that I have a proper claim for public interest disclosure

[Emmzzi]

"not recording your hours" is 99.99% not public interest. (I, for example, am not bothered.)

 

"Was stealing taxpayers money", "Was killing patients on purpose", "Was illegally exporting nuclear weapons" - these are public interest.

 

I'd give it up, you have nothing to gain here and a lot of yours and judge's time to waste.

[id330uk]

The word 'public' is misleading. This supervisor does not need to have committed a serious crime concerning the public. Mild bullying is concerned. Moreover he did this also to others staff

 

I think that you have not understood the law on public interest disclosure which is also called detrimental treatment. In my case the detriment was my dismissal itself

 

By the way I have not yet received a reply concerning my concern about what would happen to the default judgment if the EAT decides that I have a proper claim for detrimental treatment

[Emmzzi]

If you don't believe me go read the law. Or pay for a lawyer. Either works.

 

I'm not answering the question as I don't do academic theory. You have no case.

 

http://www.legislation.gov.uk/ukpga/1998/23/section/1

[firstclassx]

Qualifying disclosures are disclosures which the worker reasonably believes tends to show that one or more of the following matters is either happening now, took place in the past, or is likely to happen in the future:

 

1) a criminal offence;

2) the breach of a legal obligation;

3) a miscarriage of justice;

4) a danger to the health and safety of any individual;

5) damage to the environment; or

6) deliberate concealment of information tending to show any of the above five matters.

 

Things like workplace disputes etc do not really come into it, unless the dispute was on a massive scale affecting a large number of the workforce, (i.e. whole factories with hundreds of employees), etc, and/or its customers as a result. (i.e. an airline bullying pilots to work excessive, and potentially unsafe hours, or the NHS telling doctors not to give pain relief to dying patients to save money etc).

 

Your plan of attack will fail because it is about an individual dispute between you and your manager. It is not a public interest case.

 

You should have raised a grievance whilst still employed regarding the problems and progressed it further within the company until you got a final decision from a director. You could have then tried to go down the "contractual procedure not followed" route.

[stu007]

Hi

 

I am afraid I would have to agree with Emmzzi advice and IMO you really are going to be wasting your time using public interest route.

[assisted blonde]

Having read some of your previous threads re your accomodation, baliffs etc i think you may be getting an awful lot of information from books or the internet and taking some of it too literally I would suggest that you consult a lawyer who has a deeper knowledge of some of your issues and may stop you going off at a tangent or wasting your time in persuing a dead end. I also dont think you have any chance on the Public Interest route, it really isnt a matter of public interest.

[id330uk]

My disclosure concerns ‘breach of legal obligation’ because this supervisor did not record the hours works and cancelled shifts without informing staff in advance contrary to the internal rules and as a consequence some staff had to come from far away even if there was no work for them on this day

 

The ‘public’ concerned sometimes is quite small particulary in very small firms but the law protects also staff in small firms from being dismissed only because they make a complaint because the employer is failing with a legal obligation concerning their contract of employment.

 

I used the internal grievance procedure and I was dismissed only because I made a complaint without receiving a reply to my complaint. This is obviously illegal

 

The law on public interest disclosure protects staff from being dismissed because they make a complaint even though they cannot make a claim for unfair dismissal because for example they do not have one year continuity service or they are workers and not employees. Otherwise which protection these people would have

 

You are too much influenced by what you hear in the media concerning big cases of whistlerblowing in the big firms like NHS and airlines. However staff working in small firms also can make claim for public interest disclosure if they employer does not comply with his legal obligation concerning the contract of employment. However these claims are rarely reported in the media

 

I forgot to say that as stated in my first post the proof that I have a proper claim for public interest disclosure is that an employment tribunal says that I does not have one but a judge in the Employment Appeal Tribunal thought that I have one and accepted my notice of appeal about this issue and there will be a full hearing at the EAT.

 

 

(because the hearing at the employment tribunal was about the respondent's application to revoke the default judgment and not about my claim for public interest disclosure the judge did not give a proper attention to this issue which was raised only by me during this hearing to oppose the respondent's application to revoke the default judgment)

 

And concerning this full hearing I would like to know what would happen to the default judgment if it is ruled during this full hearing that I have a proper claim for public interest disclosure.

 

 

I have not yet received a reply to this interesting and challenging question. after all it is to have a reply to it that I have posted this thread.

[becky2585]

"Contrary to internal rules" rather than "breach of a LEGAL obligation" is the problem here. Case law prohibited employees from whistle blowing on their own contract a few years back.