Unfair disciplinary process

[Emmzzi]

under 2 years service, 14 page letter of rebuttal and not pregnant - realistically, no chance.

 

Unfair, but best thing was to quietly take an action plan while looking for a new job. If they have decided she is out - then she is out, in a company of yes men.

[_craigymac_]

thanks for the quick reply.

 

perhaps I've misunderstood you but the 14 page rebuttal was in defence on my wife not against.

 

are you saying in a legal sense, the partner can just dismiss without having to provide any evidence? If they think it an appropriate decision then so be it?

 

can you clarify what you mean about the action plan?

[Emmzzi]

They are an employer looking for quiet compliance and your wife has demonstrated she is not the compliant type by not saying "yes, thank you for the action plan" and by handing in a frankly HUGE document arguing her case.

 

In employment there usually comes a time where you choose the safe path or the morally just path, and the just path seldom means you keep your job. (Most of my debates on here are ethics versus pragmatism.)

 

In the first 12 months (after April, 24) the employer can just say "sorry, it isn't working out" as long as they give the required notice. So as long as it is not because she is disabled, a certain religion, etc - yes, it is legal.

[_craigymac_]

I fully understand what you mean by the safe and morally just path. I also know are not sugar coating and I appreciate that approach. please bear with me. I just want to know if there is the slightest angle we can still take on this.

 

An action plan was never put to my wife. It went straight to dismissal. She has been told informally by a senior person in her department that the partner stated that she was going to be dismissed prior to her actually having the first disciplinary meeting. Does this matter at all.

 

My wife is German, does this give her grounds for arguing that it is based on this? Based on her current performance measures there can be no reasonable explanation for dismissing her other than the partner wanted her out.

[altobelli]

Hi craigymac, sorry to hear what happened, this kind of thing is unjustifiable. As I said before, 'action plans' are for kids, if she agreed to one your wife would have just been helping them to get rid of her, she did the right thing not to take it. Why should people sit and put up with bullying?

 

I would appeal the decision, but also advise you to take legal advice on this, while its true that under two years service now means no right to claim unfair dismissal in most circumstances I think there are some options which might be available (some of these might be non starters but a lawyer may be able to advise). I'm assuming that there are no performance issues, your posts would seem to demonstrate this, so I'm assuming that the dismissal is unfair. Under no circumstances should she admit to poor performance when she hasn't been guilty of this.

 

i) This complaint against your wife was only raised after she raised concerns about the workload to the partner. I think this could constitute a victimisation claim (others will disagree but I think it is at least worth looking into this).

ii) Your wife should speak to the head partner and make her case clear, frankly the more detailed her defense is the better. She should follow this up with something in writing which demonstrates in as much detail as possible why the complaint against her is wrong, and she should also mention that she questions the motives behind the complaint. Hopefully, the head partner will be made of stern enough stuff to stop this in its tracks.

iii) The partner has said that she doesn't have time to train your wife. Can your wife demonstrate that this is untrue, e.g. does the partner take a lot of half days, come in late, that kind of thing? I would have thought it would be your wife's line manager's job to get her up to speed, not the partner's. In any case, there is no need for your wife to be brought up to speed as she is exceeding her targets.

iii) Is your wife a qualified accountant? If she is, the relevant accountancy body may be able to give some advice or provide mediation. The partner will be a member of an accountancy body, so your wife will be able to complain to the body about her. Make clear in your discussion with the head partner that you are considering doing this. Believe me, they will not want you to do this, it becomes a matter of public record and they will lose reputation and clients. This could be one of the most potent actions you can take or threaten to take.

iv) Your wife was switched from over-performing to under-performing. Why? Has anyone else been dismissed for performance issues in similar circumstances without warnings, etc. or adequate time in the job. Could it be that your wife's gender was an issue, and they dismissed her because she might become pregnant and plan on replacing her with a male? If this is the case, the two year rule doesn't apply and you may be able to claim unfair dismissal.

v) You might be able to look at wrongful dismissal. This would be via the county court and would be a claim based on breach of contract. It is normally limited to pay in lieu of notice in terms of damages but there has been some talk in legal and employment circumstances that other damages may be available where the statutory law doesn't provide a remedy. This is a complex area though, and a lawyer would be best placed to advise.

vi) In some jobs, and accountancy is probably one of these, if an unfair dismissal could lead to such a loss of reputation that your wife might find it difficult to get a job in the same industry, then you can go to court to get an injunction which would prevent the firm from terminating the contract. Again, a lawyer would be able to provide further advice on this.

 

I think the important thing is to find something which will allow your wife to go to court, a credible threat of this may be enough to get some sort of settlement. What does your wife want to do - would she rather stay given the choice, or if she was offered a settlelement which would cover her until she found a new job would she be comparitively happy with that?

[Emmzzi]

If you have no proof of a pre-made decision you have no case

If you have no evidence of racism or sexism you have no discrimination

 

Thinking it is not enough, you need proof - witness statements, documents, etc.

 

The question is what is best for your wife - fighting what is probably a fruitless case, or moving on to the next challenge?

[altobelli]

Emmzzi, this isn't true, if the OP's wife can establish that there is no rational basis to the complaint, then that raises the question of why the complaint was made. Given that the OP's wife raised concerns to the partner before the complaint, there are questions to answer about the motivation for the complaint and the way in which performance concerns were raised. If a decision was made which could on the face of it be discriminatory, the employer has to show that it wasn't. Circumstantial evidence can be crucial in employment cases. Obviously the partner isn't going to say that she's getting rid of the OP's wife because she complained or because of her gender in front of witnesses, and the OP's wife has substantial documentation proving that she met her targets and also a possible witness who advised that the performance appraisal was 'switched'.

 

There are other points I have raised which are also worth looking at. The point here is not just about making an ironclad case which will definitely succeed, it is about being able to take the matter to court if she wishes, in order to have some leverage. Wait and see, discrimination claims will dramatically increase now that the unfair dismissal time limit has increased to two years.

 

I would reframe your question in a different way - what is best for your wife - feeling that a bully has won and possibly suffering financial loss/loss of reputation, or fighting back, when there may be avenues which will allow you to do so?

[Emmzzi]

altobelli, you are basing most of your arguement on a definition of victimisation which I believe to be incorrect, as no formal complaint process was used. Please provide a link to a UK based employment law site which supports your definition and prove me wrong!

 

No more long theories - just a link please!

Edited November 12, 2012 by Emmzzi

[altobelli]

Paragraph 2, second sentence:

 

http://www.adviceguide.org.uk/england/work_e/faq_index_employment/faq_employment_being_victimised_at_work_after_discrimination_complaint.htm

 

But I'd still advise checking this with a lawyer.

 

I've provided facts, not theories, but its important that I give detailed responses to the OP. The victimisation element is only one point out of six which I've mentioned, so not sure how that makes up most of my argument?

[Emmzzi]

i) This complaint against your wife was only raised after she raised concerns about the workload to the partner. - but did not formally complain so no legal vitimisation

 

ii) Your wife should speak to the head partner and make her case clear, frankly the more detailed her defense is the better. - 14 pages pf clear did not help, you suggest more?

 

iii) The partner has said that she doesn't have time to train your wife. - and the partner is under no obligation to, this is a non starter

 

iii) Is your wife a qualified accountant? If she is, the relevant accountancy body may be able to give some advice or provide mediation. - seriously, no, they won't.

 

iv) Your wife was switched from over-performing to under-performing. Why? - because the partner has taken a dislike to her, but not in a way that can be proven to be because of a protected characteristic, Non starter.

 

v) You might be able to look at wrongful dismissal. This would be via the county court and would be a claim based on breach of contract. - that would apply if the wrong notice period were given...

 

vi) In some jobs, and accountancy is probably one of these, if an unfair dismissal could lead to such a loss of reputation that your wife might find it difficult to get a job in the same industry, then you can go to court to get an injunction which would prevent the firm from terminating the contract. - it's jus a "this didn;t work out." What you are talking about is for allegations of fraud.

 

I am exhausted reading this. There is no case. It's not fair, but there is no case!

 

I'm done.

[altobelli]

i) This complaint against your wife was only raised after she raised concerns about the workload to the partner. - but did not formally complain so no legal vitimisation - can victimisation only be in response to a formal complaint? I doubt it.

 

ii) Your wife should speak to the head partner and make her case clear, frankly the more detailed her defense is the better. - 14 pages pf clear did not help, you suggest more? - Should be as long as necessary, someone's job and professional reputation is at stake, its not something which can be glossed over in six lines. If it goes to court wait until you see the amount of documentation involved. You seem to be suggesting that the OP should present a flimsy case and not back it up with supporting evidence. If HR/management can't be bothered reading it that's tough, that's their job and they shouldn't try to stitch people up.

 

iii) The partner has said that she doesn't have time to train your wife. - and the partner is under no obligation to, this is a non starter - the partner is under an obligation to ensure their staff are trained, of course they are. What do you thing they're paid for? And you're missing the point, if the partner is claiming to be busy and they are in fact not and the OP's wife can demonstrate this, it makes the word of the partner unreliable if it goes to court.

 

iii) Is your wife a qualified accountant? If she is, the relevant accountancy body may be able to give some advice or provide mediation. - seriously, no, they won't. - how do you know that? A complaint, or threat of a complaint to an accountancy body may make a big difference here and the accountancy body can order compensatory awards in certain circumstances and are obliged to look into complaints.

 

iv) Your wife was switched from over-performing to under-performing. Why? - because the partner has taken a dislike to her, but not in a way that can be proven to be because of a protected characteristic, Non starter. - missing the point again, it demonstrates bad character on the part of the defendant if it comes to court.

 

v) You might be able to look at wrongful dismissal. This would be via the county court and would be a claim based on breach of contract. - that would apply if the wrong notice period were given... - not necessarily, as I say, this is something of a grey area.

 

vi) In some jobs, and accountancy is probably one of these, if an unfair dismissal could lead to such a loss of reputation that your wife might find it difficult to get a job in the same industry, then you can go to court to get an injunction which would prevent the firm from terminating the contract. - it's jus a "this didn;t work out." What you are talking about is for allegations of fraud. - absolutely not, you're wrong there, the OP's wife is being accused of incompetence, if it is viewed that this could seriously damage her reputation and prospects, she can seek injunctive relief.

 

I am exhausted reading this. There is no case. It's not fair, but there is no case! - there may be a case, internally, via the professional bodies, or via court, I've raised six avenues to look at. You've decided there is no case, so it doesn't matter what I suggest, you'll say it won't work, you're not looking at the situation impartially.

 

I'm done.

 

It is hard work to go through a case and look at ways to fight it, and it would be wonderful if everything could be solved by a supply of stock answers and good soundbites, but that isn't always the case.

[becky2585]

Just to clarify something here. Victimisation is a very precise legal point.

 

You can't claim victimisation unless there was first a "protected act", and then suffered a detriment as a result.

 

To be capable of being a protected act, there has to be a complaint about either discrimination, or asserting (certain) statutory rights. Merely raising a grievance, or complaining about workload, isn't a protected act. Raising a grievance can be a protected act, but only if it raises complaints about the statutory rights which I previously mentioned.

 

You can't claim victimisation for raising complaints merely about your own contract being breached, for example. Those legal provisions were removed a while back. You also can't claim victimisation, for example, asserting your statutory right to bring a personal injury claim against your employer. For some reason, that's one of a list of statutory rights which are not protected.

 

I don't see legal victimisation here. Certainly the OP has been singled out - but not victimised. Not in terms of the legal definition, anyway.

[altobelli]

Ok becky, thanks for clarifying this.

[_craigymac_]

Just to clarify something here. Victimisation is a very precise legal point.

 

You can't claim victimisation unless there was first a "protected act", and then suffered a detriment as a result.

 

To be capable of being a protected act, there has to be a complaint about either discrimination, or asserting (certain) statutory rights. Merely raising a grievance, or complaining about workload, isn't a protected act. Raising a grievance can be a protected act, but only if it raises complaints about the statutory rights which I previously mentioned.

 

You can't claim victimisation for raising complaints merely about your own contract being breached, for example. Those legal provisions were removed a while back. You also can't claim victimisation, for example, asserting your statutory right to bring a personal injury claim against your employer. For some reason, that's one of a list of statutory rights which are not protected.

 

I don't see legal victimisation here. Certainly the OP has been singled out - but not victimised. Not in terms of the legal definition, anyway.

 

what if she were to raise the issue of her nationality as being the basis of discrimination this would this count as a protected act?

Is it then the case that company would have to demonstrate how the decision was reached and that it was properly documented?

If, as we clearly suspect, the partner has no actual evidence of under performance other than opinion then they would surely struggle to do this?

[Emmzzi]

It can be as simple as "it's not working out."

 

They do not need a proper reason.

 

What evidence do you have of racism?

[Pusillanimous]

iii) The partner will be a member of an accountancy body, so your wife will be able to complain to the body about her. Make clear in your discussion with the head partner that you are considering doing this.

 

I would not recommend making such a threat; it smacks of blackmail, which might only serve to make her bosses even more determined to see the back of her. Never sink to the level of others.

 

Is there somebody after your wife's job? This may be the key to her victimisation.

 

It could be race discrimination as many people still have strong feelings against the Germans, unpalatable though it might seem to the more reasonable of us. However, unless there is proof, again it would seem vindictive to claim it.

[becky2585]

what if she were to raise the issue of her nationality as being the basis of discrimination this would this count as a protected act?

Is it then the case that company would have to demonstrate how the decision was reached and that it was properly documented?

If, as we clearly suspect, the partner has no actual evidence of under performance other than opinion then they would surely struggle to do this?

 

If she alleged discrimination because she was German and then was disciplined, then yes, it could be. But it would have to have been before she was disciplined. To allege it now would be an allegation of race discrimination, which could be very hard to prove.

[_craigymac_]

What I am trying to achieve with the race discrimination claim is for this decision to be properly scrutinised during the appeal process. That is someone Senior to the Partner has to ask the question during the appeal process as to whether the disciplinary process would seem to be fair in the eyes of an employment tribunal. The following example is taken directly from section 10.14 of equality act 2010. Swap references of sexuality for nationality.

 

Example:

An employer decides not to confirm a transsexual employee’s employment at the end of a six months probationary period because of his poor performance. The employee is consequently dismissed. Yet, at the same time, the employer extends by three months the probationary period of a non-transsexual employee who has also not been performing to standard. This could amount to direct discrimination because of gender reassignment, entitling the dismissed employee to bring a claim to the Employment Tribunal.

 

Seems clear to me that they would have to demonstrate that everyone on the same disciplinary process was given the same treatment of dismissal. would it not?

[_craigymac_]

Chapter 15 on Enforcement (see below) indicate that they have an obligation to investigate it thoroughly. At a minimum someone will have to ask the Partner to justify her complaint - which so far she has failed to provide any evidence of other than her opinion.

15.5

A worker who has a complaint under the Act should, as far as possible, seek to raise the complaint with the employer in the first instance. To avoid a claim proceeding to the Employment Tribunal, the employer should investigate thoroughly any allegations of a breach of the Act. This would enable the employer to determine whether there is any substance to the complaint and, if so, whether it can be resolved to the satisfaction of the parties.

15.6

A worker who has a complaint under the Act may request information from their employer about the reason for the treatment which is the subject of the complaint. This is known as the procedure for obtaining information and it is additional to other means of obtaining information under the Employment Tribunal rules.

15.9

The questions procedure is a way for workers to obtain information when they believe they have been subjected to conduct which is unlawful under the Act but do not have sufficient information to be sure. It could also assist the worker in their decision about how to proceed with the complaint. The questions and any answers are admissible in evidence in tribunal proceedings.

[Emmzzi]

Any appeal will usually be heard by someone senior to the person presiding over the original dismissal.

 

I would be amazed if the most senior person did not already know and condone the actions taken however.

 

you certainly don't need to invent racism to get your stated desired next step. If anything that will make it even more certain she will not get reinstated, a decent reference, etc.

 

Just appeal. Keep it simple.

[_craigymac_]

The allocated Partner is junior to the person who raised the claims, conducted the so-called investigation and presided over the initial meeting. This also happened to call the head of my wife's department during the outcome meeting to ask if she was fired yet. So I agree with your condone comment. Hence why I am trying to highlight the sham it is through other processes.

[Emmzzi]

through lying, it seems.

 

if you want to take the moral high ground you need water tight morals yourself.

[_craigymac_]

through lying, it seems.

 

if you want to take the moral high ground you need water tight morals yourself.

 

I don't think I tried to claim the moral high ground. I believe the action taken against my wife is unreasonable and I'm just looking for any means possible to contest the decision. If they don't have a proper reason then how can they demonstrate they haven't discriminated? If they can provide a proper reason then fair enough.

[altobelli]

I would not recommend making such a threat; it smacks of blackmail, which might only serve to make her bosses even more determined to see the back of her. Never sink to the level of others.

 

Is there somebody after your wife's job? This may be the key to her victimisation.

 

It could be race discrimination as many people still have strong feelings against the Germans, unpalatable though it might seem to the more reasonable of us. However, unless there is proof, again it would seem vindictive to claim it.

 

Pusillanimous, someone stands to lose their job because of actions which would go against the standards of the accountancy institute to which the partner belongs. Having this investigated could be a way for the OP's wife to get some justice and perhaps compensation. It isn't blackmail to suggest during the appeal that a complaint to the accountancy body is being considered, its a fair approach and gives the person hearing the appeal the opportunity to rectify the situation. Far better to mention it at the appeal than just to go ahead and make the complaint without giving the firm the chance to repsond. As I mentioned before, the complaint or threat of a complaint to the accountancy body could be one of the most potent weapons the OP's wife has, no accountancy firm is going to want one of its partners scrutinised by a professional body. Due to the time the OP's wife has been employed a standard unfair dismissal claim is not an option, there may be options available, but it will involve thinking outside the box.

[altobelli]

Craigymac, if your wife genuinely believes that she has been discriminated on the basis of race or sex then she is entitled to make a claim on this basis. This isn't just a case of 'it didn't work out', as it stands your wife has been dismissed due to false claims about her performance, which is distressing to an individual and professionally damaging. It may be the case that race or gender has played a part. Perhaps the partner didn't like been questioned by another female, and if a male had been in the job and had raised the same concerns, then no performance related complaint would have arisen. The disciplinary process has clearly been flawed, I don't see how the employer can demonstrate that performance is the real reason for the dismissal, which means that if this goes to court they will have to demonstrate what the real reason was, and that it didn't relate to race or gender. You can build a case on circumstantial evidence, but it could be that a judge decides this evidence isn't strong enough, although the disciplinary process would be commented on, so you would achieve your aim of having had the process reviewed. Employers are terrified of discrimination claims, so it could be that they would settle before the matter got to court in fear of the bad publicity or damage to reputation. A discrimination claim in your wife's case wouldn't be iron-clad, but then many discrimination claims proceed without direct evidence of discrimination having taken place. So yes, raising a discrimination claim could be a way of having what has happened investigated, although the claim itself may not succeed. But I would only advise you to go ahead with the discrimination claim if you believe discrimination has been a factor in the corrupt disciplinary process, I can't advise concocting a claim.

 

For the appeal, it is important that you put as much detail as required into it and don't over-simplify or gloss over anything. The employer would love it if you just submitted a brief appeal refuting the performance allegations, they have most likely decided already that the appeal will be dismissed, knowing they are acting unfairly but believing there is nothing that can be done about it. Your wife needs to make it as difficult as possible for the employer to reject the appeal, and this is her chance to raise in writing all matters she is concerned with, whether it be related to discrimination or to concerns that the partner is breaking the code of conduct of the accountancy body. The company should in fairness look into any allegations you raise as part of the appeal, and if you don't raise them at this stage they will claim in their defense that they were unaware of the allegations as your wife didn't raise them when she worked there. Of course, in the appeal you should also refute the performance allegations based on the evidence and the fact that your wife was switched from over-performing to under-performinng.

 

I'm not saying that your wife should raise a series of wild allegations, but she should select the appropriate course of action based on what she feels to be the reason for the employer's conduct and pursue this vigorously, starting with the appeal. There are definitely ways in which her concerns can be raised and considered by external parties, although she may not win a case she can at least ensure accountability and may be able to get a settlement from the employer.