Re: Unfair dismissal, age discrimination, whistleblowing

[Hansoff]

All,

 

I have read this thread with interest as it seems very relevant to me. One big difference is that the respondent has asked for me to consider JM and the CMD (by telephone) is scheduled to last 15 minutes. I have already said that I am in agreement (really good things to do with my life, still, but very annoyed with the company who sacked me).

 

I will ask for a statement of position and expectations from the other side and also for them to meet the cost of legal representation on the day to approve any eventual agreement. Or the cost of it afterwards, to sign it off but I am wary of them changing their mind after the event.

 

I have a question about the accuracy of the ET3 put forward by the respondent - if it is false in any way does this disadvantage them? Two items particularly:-

They have changed wording in a letter (correct copy is in the bundle) I wrote to them that presents me in a poor light.

Also, during the disciplinary process and appeal the company referred to a letter notifying me of the grievance appeal outcome, which was unsigned and wrongly dated, that I did not receive. I did receive a signed letter a day later that overrode much of what was in the letter that they refer to, which was signed and is in my possession. The actual letter I received was satisfactory to me whereas the one quoted was not.

 

Are these things important to an ET?

 

Following my grievance appeal and the letter issued the company went straight into an (inadequate) investigation of points I had raised and subsequently held a disciplinary meeting. I was then dismissed, pay in lieu of notice, from a responsible job and after 11 years with the company. An appeal was unsuccessful.

 

Any comments would be very well received - I haven't started a new thread as I think there are similarities here.

 

In addition, a compromise agreement is seen by employers as covering things up. This may disadvantage a job seeker, particularly where CRB checks are required. What is anyone's view?

 

Loquitur achieved a good result - well done.

[honeybee13]

Hello and welcome to CAG.

 

We recommend to start a new thread no matter how similar your problem seems, and the thread you tagged onto is a couple of years old. I'll ove thsi to a thread of your own.

 

My best, HB

[Hansoff]

Thank you honeybee - I was in the middle of providing more info when my computer messed up. I will update tomorrow - history

and present position.

[Hansoff]

The case I would like to describe needs a long (sorry!) explanation about 'A' - an ex-employee (male or female - 'he' is used for brevity) in a responsible position:

 

A worked in the transport industry - public safety is absolutely important. Some of the circumstances A found himself in were a slight cause for concern as they could have indicated sloppiness behind the scenes and a lack of attention to necessary, documented detail. A confronted these, with no repercussions. A also had a substantial period off work (6 months) for domestic and health reasons. His 'return to work' agreement, with a less demanding role, was not respected by a manager and finally, at a later stage A was forced to raise a grievance because he felt he was being bullied or targetted and the company had failed to follow procedures properly when assessing him for promotion . The grievance was heard and an apology issued by the hearing manager, together with reinstatement (A had been demoted as a result of the actions mentioned and, in a safety scenario he felt he had to take time off work for 'work-related stress' while he sorted it out, with a GP's series of notes). The hearing manager asked how old A was (mid-fifties), qualifying the question with the statement that he knew how difficult things got (on courses) as one got older.

 

The reinstatement left it open to those managers A had complained about to set targets etc. which worried A. The targets seemed to him to continue the abuse. However, A returned to work determined to be positive and asked a more senior manager to move him to another department, under the same conditions. This was within the manager's gift but he would not do so - at this stage A had not formally actioned the harassment procedure (A never did).

 

A was telephoned while off sick by a manager who discussed 'frustration of contract' issues with him following the documented absences.

 

A asked for support from HR at a 'welfare meeting' but this was ignored.

 

Throughout all this A was supportive of the company, in discussions with colleagues, often in the face of 'manager-worker' hostility.

 

While researching the company's actions, through policies and schedule and agreements A started to find other shortcomings in areas that concerned him, for safety reasons.

 

A was suspended from work for reporting a minor oversight, of the sort that are reported frequently and usually result in no further comment. A was asked to fill in a form that had usually been confidential and disidentified, honestly and accurately to help safety. A's comments included a concern that the actions he had been subject to, and his thoughts about them, might have led to a momentary loss of concentration. This was siezed on as possible 'grudge bearing' and A was asked to attend a meeting. At the meeting A was told that, in order to return to work, A should withdraw his statement form or else file a grievance. A could not see why he should file a grievance and restated that he still held his concerns but that he would withdraw the form. A did not withdraw the form as evidence of 'hasty' actions or state that he might have made a mistake (as requested by the manager). The company was happy as it promised to remove the form from the records and could ignore the issue. This situation concerned A as if it was indeed a safety matter then they knew about it and were derelict in their duty by ignoring it.

 

A felt that his questions of other aspects of safety were being ignored. Another incident (critical mechanical failure) was not followed up with any urgency.

 

Eventually A felt that there were too many problems, in his treatment, in safety matters and raised another grievance. Again, as this was stressful, A removed himself from work with a GP's note - there is no company procedure to allow this to happen without a sickness absence.

 

At this time, A approached the regulatory authority to see whether his fears were valid. A only mentioned the most serious and was supported in his concerns although, without time to investigate properly, A could not have 100% support. Later A received confirmation that at least one matter had been raised with the company, who could not explain their shortcomings.

 

The grievance was held after a while, with a manager who was new to the company. He decided that A had serious character defects (never menntioned in more than 10 years working in the industry), that the original targets A had been set were justified and felt A should be suspended pending an investigation into his complaints.

 

A appealed this seemingly ridiculous state of affairs. The manager who heard the appeal agreed that the grievance findings could have been justified but that the targets should be those that applied to everyone else and were in line with the 'return to work' position agreed two years earlier. A was content with this. A letter was written to this effect.

 

However, the investigation took place, held by one of the managers A had originally complained about for failing to respect the return to work agreement (he was the one who had agreed it). This manager complained that he could not understand his issues, that he was fed up with the process and promised to investigate. His investigation, carried out by e-mail, was complete in 3 days but it took him 3 weeks to put the e-mail comments into one document and inform A of his findings. The manager maintained that none of A's concerns were valid and that he was supported in this by the e-mails he received from other managers, in response to his 'investigation' e-mails. He had ignored some of the points A made, some of the responses were in contradiction with other statements by managers and A felt the investigation was not worthy of the name.

 

However, the manager felt that A should, perhaps, face a disciplinary hearing in view of the comments, and remain suspended, not to enter company property etc. He passed this responsibility to the manager who had, a few months earlier, asked A to withdraw his 'form' before returning him to work and who had also issued the apology on behalf of the company at the initial grievance. A felt that his appeal had achieved a satisfactory result, the investigation findings could be clarified and that he was positively looking forward to a return to work in acceptable conditions. A felt that the manager to whom the matter was referred was reasonable, if misguided at time and that there might be a case for a warning. The union rep. thought this was a possible outcome. Neither really expected more serios disciplinary penalty, if a hearing at all.

 

( as an aside - at this time, the company reached an agreeemnt with the union on pay and conditions that was supported by 51% of the workforce. The previous negotitations had led to a threat of industrual action by 80% of the workforce. The CEO wrote to the union explaining that he understood the atmosphere of distrust that had built up and that he was glad the negotiations hade been successful, and that the company attitude to workeers was going to change. A was relieved by this, wrote to the CEO in support of him and hoping that the pending disciplinary meeting could be reviewed in the light of changes the CEO said would be taking place. The CEO ignored the letter, at least to A although he sent a 'read-receipt')

 

The manager did, to A's surprise, arrange a disciplinary meeting. The disciplinary dates changed several times due unexpected illness on A's part and work commitments, holiday etc on the manager's behalf. At the eventual hearing, the manager stated that he felt misled by A in respect of the form A had withdrawn - which he had not removed from the record as he promised - as it formed part of the disciplinary case against A. He also brought up some unfavourable comments A had made on an employee forum (private forum) although many other employees had used this forum to vent their anger at the company management during this period of acrimonious pay and conditions negotiation. He accused him of lack of trust in the company. There were other issues, apparently, which were documented.

 

A had had a union rep. with him for all meetings from his first grievance. A had not felt the need for it beforehand. The disciplinary meeting resulted in his dismissal, directly on receipt of the manager's letter. The union did nothing other than allow the rep. to accompany him and help him prepare the appeal. This was unsuccessful. Safety isseus were cited in the dismissal which would have debarred A from looking for another job in that sector, but with only the dismissing manager's statements as support. So was A's performance, which apparently would never improve. The 'inappropriate use of a private forum' was discounted at the appeal. Being 60 years old this effectively stopped A from ever working again.

 

The union took a long time to get A's ET1 submitted. It cited age-discrimination, whistleblowing and unfairness, and the union did think his case had merit. The union have now withdrawn legal support as the solictor/counsel they appointed felt that A did not have a >50% chance of success.

 

Following A's grievance appeal, another document which has never existed, which is unsigned and which A has never seen, was used by the company in the disciplinary and appeal meetings.

 

I do not need to add any further detail. I am not attempting at this point to state that these actions are typical or that A wishes to identify anyone. Any reference anyone feels refers to them should be ignored as this may be a complete work of fiction by A. I think it is a situation, perhaps hypothetical, that might arise and would welcome any comments by anyone who has experience in these matters.

[honeybee13]

Hello again.

 

Is this to do with the thread I started for you yesterday? You'll get better advice if the information is kept together. I can alter your thread title to this one if you like.

 

HB

[Emmzzi]

I do not need to add any further detail.

 

You do if you want a meaningful reply.

 

Is it hypothetical or not because if it is, I'm not wasting my time for the sake of debate. I will always offer "real" people guidance if they guve me enough info to do so, however.

 

What are the nature of the safety breaches?

 

When they talk about passing courses, is that your driver CPC?

 

Do you actually have any accountability for safety in your role eg a safety manager?

 

You need to stop talking about "a document" and being vague. In this arena, opinions are only accurate if we have all the detail.

 

If you don't want to share on a forum, you should probably pay a solicitor for a view.

[Hansoff]

HB - thanks - if it is better together then can you merge it, please.

Emmzi - I appreciate your concern. Yes, it is real. The safety breaches relate to:

- failure to provide adequate pre-travel safety information required to anlayse the likely success of the trips within safety margins. The provision of this information uses a third party but the service provided had already been shown to fail in this manner (only discovered by accident) and the company did nothing to alert employees to this possibility. It is not known on how many occasions this has happened.

- use of instructions to drivers provided during training, not backed up in the company orders. These instructions undermine the safety margins of a particular trip as there is the possibility of an emergency situation arising.

- alterations of, and the possibility of alterations of company orders after issue without an audit trail.

- leaving unqualified and unauthorised staff to make recommendations that relate to the safety of the trips, the trip requirements, without an audit trail and without warning employees that this could happen,

- leaving confusing and obsolete information, sometimes safety related, in domains where absolute accuracy is required,

- advising employees that sub-contractors are under no obligation to act as specified by the company and therefore may not act as required in preparing vehicles for safe operation,

- providing company orders that are inoperable in certain adverse conditions due to the nature of the operation.

 

The courses are those required to be able operate at a safe level. There was never an issue about passing these courses although the company added extra requirements on the the regulators specifications, without a real safety justification and used these to criticise performance. There was an issue about the conduct of the in-house examiners that was never explained (probably not investigated).

 

There is a safety manager/department who are aware of these issues.

 

The 'document' referred to is in fact the letter written after the grievance appeal. The copy, signed, posted and received was acceptable. The company referred and refers in the ET3 to a letter issued apparently by the same manager, a day earlier, that was never signed, sent or received and in which the conditions were unacceptable.

 

I apologise for appearing vague. I hope the above helps and you feel you can advise.

[Emmzzi]

ok. My first thoughts are this.

 

You had a lot of time off ill and seem to have gone off ill subsequently whenever a problem arises. This would make me query if you were able to fulfil the terms of your contract.

 

You believe a staged return to work with amended duties, should have those duties in place in perpetuity. This is not the case.

 

You have issues about your targets - if they are the same targets as other people have, and a reasonable number of people are meeting those targets, there is no issue.

 

When there were safety problems, irrespective of magnitutde, you seem to have seen it as your duty not just to make a manager aware, but to act as the local "safety hero."

 

You have insulted your employer on a public forum. And, no forums on the internet are truly private.

 

You seem confused about the role of your rep. attend meetings and help prep is exactly what they are there for, what else did you think they would do?

 

You have an issue with management, especially newcomers to the organisation.

 

You have a list of complaints and hurts as long as your arm and I have no idea what you were actually dismissed for (I think you were dismissed) or what the main, chunky complaints which would be worth fighting over are, because they are lost in the minor petty details which you should let go.

 

Now.

 

What is your current position; and what is your ideal outcome? In short sentences please!

[honeybee13]

I've merged your threads and used your most recent title, hope that's OK.

 

HB

[stu007]

Hi Hansoff

 

From what you have stated on the safety issue it seems to me that "Risk Management" is being completely ignored and you mention audit trail but where is the Risk Assessment trail.

 

What was the companies Risk Management Policy.

[Hansoff]

Thanks for your replies.

 

Currently unemployed, looking to obtain work in another sector. Ideal outcome is now a settlement, not reinstatement.

 

Yes, time off ill, initially wholly own circumstances and unfortunately essential hospital operations with regulated minimum recovery periods and medical examinations. Much more time off than wanted. However, given the nature of the job and concerns about safe operation with what seemed like company-induced concerns causing anxiety there was little choice at other times. Favourable comments on performance and attitude were stated in writing by some managers and examiners.

 

There has never been a suggestion that a staged return to work should last 'in perpetuity'. There was an agreement between two managers to allow the return to work agreement to continue but one of them invoked another procedure within 24 hours of their discussion. This was agreed to be unfair at the first grievance. Anxiety, confusion, uncertainty are natural reflexes in these circumstances, I think.

 

The targets were changed just before the issues arose. The delay in concluding the 'return to work' agreement tied in with these changes - ie the completion of the agreement was delayed until immediately after the changes were brought in. There was no parallel running or attempt to see what results were obtained by the new system. The targets only affected promotion prospects, not regular operations. There was never an issue with attaining the same standard as everyone else, and certainly not the regulatory standards.

 

All safety concerns were addressed, in confidence, to one manager and a reply awaited. The CEO states in all company orders that complaints relating to safety will not result in disciplinary action. Nor should it in a safety critical environment. There was no public notification of these issues, one or two were discussed on the forum in line with any reasoned discussion but complaints on the forum reflected the workforce dissatisfaction with managers.

 

The rep. did what was expected. The union walked away rather than trying to assist reinstatement - which the rep. believed should have happened.

 

The issue with management is that they were inadequately providing the support for daily operation that the employees, in safety critical work, required. They were not helping informed safety decision to be made. Satisfactory responses to the concerns raised would have ended the problems but none were forthcoming. Newcomers to the team were welcomed until the manager concerned made personal comments which seemed to have no basis in fact. Subsequently, these comments were accepted as a senior manager agreed that a sensible target for the future should be implemented (second grievance appeal findings). The other managers seem to have refused to accept this.

 

There are many hurts and complaints. It was an unsatisfactory state of affairs. These things can blow over after a while. The dismissal was for lack of mutual trust etc. and did not follow the standard procedure. I am concerned that the lack of trust, exhibited by many others and documented by the union and the forum, was engineered because safety issues were raised for which there was no satisfactory response. I am concerned that bullying behaviour was accepted and even encouraged, and that age played a part in the process. The company expects young people to be employed for a short while before moving on as this is cost-effective for them. All the recruitment advertisements show young people, date of birth is one criteria for access to the selection process.

 

Does this help?

[Emmzzi]

By "did not follow the standard procedure" do you mean you signed a compromise agreement, or something else?

 

Date of birth is a fair criteria if some of the tasks have a minimum legal age eg 17 for driving, etc.

 

You don't seem to know what you want the end result to be. Or if you do, you are not articulating it clearly.

 

What are you looking for?

[Hansoff]

The disicplinary procedure was not followed - ie it says there should no dismissal for a first offence except for gross misconduct. There was no gross misconduct, no misconduct, nothing disloyal or unsafe. There are other steps that can be taken, and some shortcuts in serious cases. There were no warnings.

 

There was no attempt to settle/negotiate - immediate dismissal with notice in lieu.

 

Stu007,

 

Hi - there is a comprehensive Risk Assessment policy. RA was questioned for two specific issue and no response was given. The RA is not generally available to employees but the process is stated as exisiting.

 

Emmzzi,

 

The regulatory process for the drivers requires a medical and licence issue has age limits either end. The medical requirement is not mentioned in the selection process.

 

A week of ET (that is what it is booked for) is better avoided. However, the statement of losses includes wages for 5 years, pension losses, benefits lost, cost of retraining etc. That is what has been lost. The company are interested in Judicial Mediation. A compromise - if the compromise is genuine is a way forward.

 

What have you found that was 'petty' in the accounts above?

[Emmzzi]

Petty is your obsession with small hurts not pertintent to the case. You did not like this manager or that manager. You felt let down in some (unspecified) way by the union. It all detracts from what may in fact be a valid case becuae it lets people mark you down as a whinger, and that lessens the impact of your genuine concerns.

 

Stick to the big ticket item, of which there is only one.

 

You were dismissed in a way that was not in accordance with the company's own disiplinary procedure. You believe it was related to your age and calling them out on H&S issues.

 

That is the bit, the only bit, that will get your a cash settlement. And it's taken what, 6 posts from you to get to that point.

 

Learn to summarise! You need a punchy argument around that point, and to keep sticking to it. Side rambles into what you thought of individuals, the recruitment website etc, will not help. They will get you written off as a rambling grudge-bearer.

[Hansoff]

Emmzi

 

OK - points taken. The small hurts as you put it built up from many small issues. The points were made to include a picture of life in a safety-critical industry which not many people have experience of. Maybe there is no need to explain that. If it appears like whinging then that is useful advice. Thank you.

 

May I know your background?

[Emmzzi]

I can tell you my background but it's the internet so I may be a baker or a tailor... you take your chances.

[honeybee13]

Hi Hansoff.

 

One way to check someone out here is to look at their previous posts. Click on someone's username, then View all Posts. I imagine it would show that Emmzzi posts a lot on this forum. If other regular posters don't disagree with her often, chances are she knows what she's talking about.

 

HB

[Hansoff]

Emmzzi - Touché. regards.

[Hansoff]

HB - thank you. Newbie so some of these tricks need explanation!

[Hansoff]

Apparently there is the prospect of Judicial Mediation and a COT3 ACAS agreed outcome if it works. Has anyone any experience of these?

 

Do prospective employers see them in exactly the same way as a compromise agreement? If so, how to get round the implication that there has been something going on that needs to be hidden? In some sectors, for example working with vulnerable people, a compromise agreement may set alarm bells going for the prospective employer.

 

Is a reference any use, as part of COT3 settlement, in these cases?

[becky2585]

They are very similar, but COT3s are usually shorter.

 

A reference can be attached and an agreed reason for leaving, just like with a CA. COT3s mean that proceedings are dismissed, so that's why they're used after proceedings are issued.