Unfair disciplinary process

[altobelli]

There is a strong whiff of victimisation in this. Was she asked to an investigatory meeting prior to the disciplinary?

 

In her defense she should put the following in writing:

- She is unhappy with the wording of the letter she received, the lack of specifics make it difficult for her to respond to. She should request specific details of exactly what areas are being referred to in order that she can fairly respond.

- Her line manager is happy with her work and she has received no feedback, formal or informal, indicating otherwise.

- She has met or exceeded all targets agreed in her last performance review, resulting in receipt of a performance related bonus.

- She is concerned that this disciplinary meeting is in some way related to concerns she raised to the partner about the business.

- That if there are concerns about her performance, she would prefer this to be handled informally in the first instance, with the help and support of her line manager and the partner, rather than go down the formal disciplinary route. Therefore she requests that the disciplinary meeting is cancelled and replaced with an informal meeting with positive goals rather than negative ones. Stress that she is committed to doing a good job and would like the chance to resolve any problems informally, with help and support being given as needed.

- She would suggest that going forward, the partner raises any issues with her at the time to allow rectification of any perceived problems.

 

It is important that she puts some or all of these points in writing as soon as possible in order to provide a written record for future reference. If it becomes apparent from the response or the firm's conduct during the disciplinary that she is not being treated fairly then she may need to consider putting in a complaint for victimisation.

 

Is your wife a qualified accountant? If so, the accountancy body may be able to provide advice or support, including mediation, with regards to the situation.

[altobelli]

I think your wife needs to cover herself. Underperformance issues need to be dealt with supportively and encouragingly by management. The disciplinary process is only ever appropriate after a sustained period (probably several months) of informal support from the line manager and the partner. Most people won't respond positively to being disciplined in a situation like this, it will demotivate them and they'll view it as being that the employer doesn't value them and they'd be better off in another job, which could well be what the employer is trying to achieve.

 

The key points here are that your wife over-performed her targets and received a bonus for doing so, neither she nor her line manager have received any indication until now that there were any performance issues, and after raising work-related concerns to the partner she is suddenly accused of undeer-performing, despite another member of staff telling her that this was not previously the case. This smacks of victimisation, and it is important that your wife defends herself against this.

 

If the company was serious about improving performance, it would have raised the matter informally first and indicated what was expected. Your wife would then have had the chance to give any mitigating factors, e.g. unrealistic expectations, not enough staff to do the job required, and performance targets could have been agreed which were acceptable to everyone. How hands-on is the partner? Some partners at accountancy firms have a reputation for being avid golfers during working hours, so does he have the relevant expertise to judge your wife's work?

 

From what you say, your wife has met any targets put to her. I would strongly advise that she suggests addressing any performace issues on an informal basis (realistic targets are fine, but 'behaviour plans' or 'action plans' are for schoolkids). If your wife receives a warning for this, I would advise her to repudiate it in writing, while also making constructive suggestions to resolve the issue.

[altobelli]

Doesn't victimisation cover where someone is treated unfairly because they've raised a complaint or concern? I don't think it only relates to discrimination cases, my understanding is that it can cover cases where a complainant has suffered reprisals after complaining about matters such as holiday pay or other matters. The company handbook in this case may cover situations where reprisals are taken against someone raising a complaint or concern in good faith. Happy to be corrected if I'm wrong, but I'm not sure about this.

 

A properly constructed set of objectives, with the buy-in of all parties, which is fluid in the sense that it evolves as business needs change, where feedback is given and reviews provided, and where there is trust on both sides, meaning that if the objectives become unrealistic it will be recognised, likewise if feedback is given about sub-standard performance it will be taken on board, is a worthwhile exercise. An arbitary 'action plan' or 'behaviour plan' which is imposed without agreement and without a proper knowledge of the day to day job will most likely be viewed as patronising or a pretext for disciplining or getting rid of people in the future. That kind of thing is only suitable for kids, professional people simply won't buy into it.

[altobelli]

Emmzzi, it isn't paranoia if its true! There is a reason why people are suspicious of workplace diciplinary processes.

 

Surely it is victimisation if disciplinary action is taken for retaliatory purposes, whether the original concerns are raised formally or informally, no?

 

I have had good and bad bosses in the past, and I'm not saying all managers are bad, nor am I saying that all workers are paragons of endeavour. But I can only give advice based on the information given, the same as I would if an employer posted a thread and I felt I was able to advise. The facts presented here by the OP are:

 

i) OP's wife has been summoned to a disciplinary meeting regarding performance. The specific performance issues in question are not addressed in the letter.

ii) No informal concerns related to performance have ever been raised, quite the opposite, the OP's wife was given a performance-related bonus, and exceeded performance targets. The line manager was not aware of any performance issues related to the OP's wife.

iii) The summons to the disciplinary meeting came after the OP's wife raised concerns about resources, etc. at the firm. She was told informally that she was not initially on a list of under-performers, but was moved to this list after she raised her concerns.

 

In these circumstances, I can understand why the OP's wife might feel concerned that she is being got at, and my advice is for her to try and ensure that this doesn't happen. It is highly irregular for a matter such as this to immediately escalate to the formal disciplinary stage without concerns being raised informally and support being offered, surely you can see that. Who is to say such over-escalation won't occur again with the result being dismissal.

 

I completely agree with you - people need to speak to each other reasonably and I am a strong believer that most workplace issues can be dealt with by informal discussion. The OP's wife raised her concerns with the partner on an informal basis, the partner has raised concerns via the disciplinary process. The problem here is that once you start summoning people to disciplinary meetings and referring in letters to possible dismissal, trust breaks down and people are rightly on their guard, particularly given the underlying circumstances here. I'm always hesitant to apportion blame, as it tends to make matters worse, but the reason this situation has escalated to the point where reasonable discussion has become difficult is due to the actions of the employer. HR shouldn't be involved at this stage, they can't possibly know or understand the specific demands of an accountant's role, in the same way as an accountant wouldn't understand exactly what HR do. The employer would have been better in this case to, if performance is a genuine concern and not a cover for retaliation, approach the OP's wife on an informal basis and raise the issue, giving her a chance to respond.

 

I stand by my point that imposing 'action plans' on others won't work with adults unless the other person involved has some input and buys into the plan.

[altobelli]

I'm not so sure about the victimisation point but, as I say, I could be wrong.

 

Regarding underperformance, the first thing is to establish whether someone is actually underperforming. In this case it is far from clear that the OP's wife is. If they are underperforming then their line manager should find out why - workload may be too heavy/targets unrealistic, possibly underlying personal issues, possibly the person isn't up to the job. The line manager should make it clear that they want to help the member of staff perform well. Once this has been established, it can be agreed how to approach the problem, perhaps training or advice in time management, delegation or some other form of support. Often the mere fact that a problem has been raised can increase productivity and resolve the performance issue. At this stage HR or 'plans' should be nowhere near the process. The line manager should monitor the situation and provide constructive feedback. If there are still performance issues, a further meeting should take place similar to the first, where issues can be discussed. At this meeting, the line manager should inform the member of staff that they will monitor the situation and a further meeting should be scheduled in due course. At this meeting, if there has been no noticeable improvement, the line manager should inform the member of staff that performance has fallen below the standards expected, and seek agreement with the member of staff as to how the issues will be addressed. At all times the line manager and the other members of the team should be supportive. If there is still no improvement in performance and no reasonable underlying circumstances then the matter should become more formal. This should initially involve senior management, but if the situation doesn't improve and the issue becomes a disciplinary/performance related issue then HR may need to be involved. A plan may be necessary at this stage but it will need the buy-in of the member of staff otherwise it is unlikely to work. It is important to at all times measure the member of staff's performance against other members of the team so the person felt to be underperforming isn't being unfairly singled out. Remember that many members of staff will have undergone a competitive and rigorous interview process even to get a job offer, this process will help identify potential performance issues before the person is even hired. Also, many staff have probation periods where performance can be closely monitored. Passing probation is an implicit message that performance to date has been acceptable, and if the member of staff makes it that far then management has a responsibility to ensure that they are given every chance to succeed in the role. Part of the role of a team is to come together and help people in the team who are struggling with the workload or other performance issues, this is not being 'dragged down', it is teamwork.

 

The problem with the approach you suggest is that as you say, people don't talk to each other in a reasonable way. But this is because people are suspicious of HR and things like 'action plans'. You're suggesting that if someone doesn't agree to a plan that you suggest, and it may be that the person feels that the plan is not appropriate or achievable, you will put them on it anyway so that you can sack them later. This is why many people don't trust HR and view 'plans' as a first step in the process of being managed out of the door. It is unsurprising that in these circumstances and in the current economic climate people may become paranoid.

[altobelli]

And the truth here as we know it is in points i) - iii) of post #10...

 

Your approach has, you say, a 50/50 success rate. I would lay a wager that the approach I have suggested (which incidentally, is along the lines of what most companies' stated approach to performance issues is in their published literature or company guidelines) would have a success rate of something like 90/10. Its nicer, its cheaper, and it works better.

[altobelli]

Any employer is a collection of individuals, and any business takes a long time to work with no guarantees of success.

 

My approach allows employees, who have succesfully passed an interview process designed to assess their capability for a role and a probation period designed to monitor their performance in the role, every chance to succeed in the position for which they were hired.

 

The approach you suggest takes the responsibility for managing teams away from managers, costs money in terms of time spent by HR, advertising/agency fees for frequent hiring of new staff who may turn out to be worse than the person they're replacing, and costs of defending lawsuits. Due to higher staff turnover, the company will get a reputation as a poor place to work and in certain industries may lose business as staff turnover will put off customers who may have built relationships with existing members of staff. It will also lead to good staff losing their jobs and their livelihoods when they are wrongly classed as poor performers because their face doesn't fit, and will create a climate of fear among staff which will cause them to find a better job elsewhere. One thing it won't result in is the work getting done any better.

[altobelli]

I doubt that! Your work on this forum will make up for anything else!

[altobelli]

But its also important to establish that there are performance issues in the first place and that this episode isn't related to the concerns raised to the partner. It is also important that performance concerns are raised in the appropriate way rather then over-escalated. It is reasonable to expect that if she has recently received a performance-related bonus, if her manager wasn't aware of any performace issues, and if she herself has never been told of any performance issues in the past, then the employer regarded performance as satisfactory. If not, she should have been told before things got to this stage.

[altobelli]

It isn't just in an ideal world that help and support is given for performance issues, its a core part of any manager's job. It is important to establish why things have gone to this stage, there is nothing wrong with de-escalating the situation and taking any issues forward on an informal basis, in fact this would be desired and is probably what the staff handbook will recommend should have been done in the first place.

 

Also, I'd say again that its important to try and establish that this is a genuine performance related issue and not some form of retribution as the OP's wife believes it might be.

[altobelli]

Yes, this seems very unfair and actually quite odd, particularly since these issues haven't been raised before. Your wife should send an email giving her understanding of the points raised at the meeting, covering the facts that points highlighted as under-performing can actually be shown to be areas of over-performace, that she refutes the verbal statements which were made in the absence of evidence, that, as discussed at the meeting, some of the points raised were the responsibility of other members of staff, and that she appreciates the partner's retraction of certain statements where she wasn't in possession of the full facts. She may feel that the handling of the matter has caused her stress and that had she been made aware of any specific issues informally (perhaps as suggested in the staff handbook), they would have been addressed and that she is committed to continuing to do a good job. She may suggest that going forward any performance issues are raised by her line manager with a view to support and resolution of these problems without the need for escalation to a disciplinary hearing, and she may express concerns that she was cited for underperformance following her raising of separate concerns to the partner. She should request strongly for a copy of the notes taken at meeting by HR for her records. She may ask that any remaining areas where she is being accused of under-performance which weren't addressed and responded to at the meeting be specified exactly. She could suggest that this matter is best handled informally, and proceeded upon on that basis. She should request that if her email does not concur with their understanding of the meeting, that they reply by return email. She should print her email and and any response and keep them in a safe place.

 

She should of course dispute the accusation of under-performance based on the evidence she has, which should be sent to the partner and/or HR. She may also want to speak to some of the other partners informally if she knows them well enough.

 

Good luck, and I'm sorry you're wife is going through this. It does sound has though the partner is pursuing the matter in this way as part of some personal agenda.

[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?

[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?

[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?

[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.

[altobelli]

Ok becky, thanks for clarifying this.

[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.

[altobelli]

Emmzzi, if you don't have an interest in understanding the law that's your choice. At least your posts are letting the OP see the type of intimidation his wife might come up against from HR at her work.

 

I've given adivce to the OP which would make it difficult for the employer to defend their actions. It may put pressure on them to reconsider their actions or make some form of compromise. There are courses of action open to take this further, and its wrong to try and discredit them without giving them due consideration.

 

As I've said, you've decided that there is no case and no matter what anyone says you won't shift from that blinkered view, regardless of the merits of the suggestions made. You've lost impartiality on this one I'm afraid.

[altobelli]

I think there may well be insufficient evidence for the case to succeed, but the option is there to threaten to bring a case or bring a case and have it heard. The OP would have to argue that if the employer had dismissed without any procedure, it would have been too blatant, therefore a discriminatory action was taken under the guise of a disciplinary and related outcome. The disciplinary itself would constitute part of the discimination. Definitely, the OP's wife would have to find a comparator relating to race or sex, e.g. the partner treated male employees in a more favourable way and no males had been dismissed in similar circumstances. My view is that the case would be heard, but if it went to judgement, it would fail. But the judge may well question the partner's integrity and the final judgement may be along the lines of 'although the employee was treated unfairly there is insufficient evidence that this was related to the employee's race/gender'. A hearing would mean the OP's wife's treatment was at least looked at independently, which may give some comfort.

 

Also, the threat of pending litigation may influence the appeal or may encourage the employer to make a settlement, many discrimination cases which have no realistic prospect of success are settled out of court.

[altobelli]

Absolutely, the OP's wife would need to point to things like the 'switch' from over-performance to under-performance, the previous bonus, the fact that performance measures were demonstrably met, the fact that concerns were only raised after the OP's wife approached the partner with concerns, and the fact that the line manager had no concerns about performance. These could be used to attack the legitimacy of the dispiplinary process. This would not be enough to prove discrimination, but it would raise the question of why such a process was undertaken in the circumstances, and discrimination could be a reason. And its important for the OP's wife to raise any concerns about discrimination in the appeal, that way they become part of the paper trail.

[altobelli]

The accountancy body will see it as an "employment matter" and will not get involved. The time to complain, is when all the legal processes are completed and findings (if any) have been made.

 

Best concentrate her energy on her immediate employment issue.

 

Hi Pusillanimous, it really depends on which accountancy body the partner belongs to as the rules differ between each body. All bodies are quite big on ethics and ensuring staff are trained, which ultimately is the partner's responsibility. But you're right, some bodies will not consider 'employment issues', i.e. matters which fall under the jurisdiction of the ET, unless the matter has gone through the ET and the claimant has won their case. Some will consider employment matters, as their code of conduct covers all aspects of the member's working life. Some will allow complaints to be heard concurrently with legal claims and some will not. Some bodies allow the complainant to complain against the firm rather than the individual member. If the OP's wife herself is a member of an accountancy body then they might be able to offer arbitration or mediation.

 

It is important that the OP's wife goes in and put up a robust defense during the appeal process, taking notes of what is said, but my feeling is that the outcome of this appeal has already been decided. So it is most important that they decide prior to the appeal what approach they want to take and make this clear during the appeal. If the OP's wife is considering a discrimination claim they need to raise this at the meeting to get the firm's response. If they do this, then depending on the accountancy body the partner belongs to, they may not be able to complain until after the judgement is made (this is not necessarily the case, it depends on the accountancy body). If the OP's wife views it as something like a personality clash which is unrelated to to a protected characteristic, which would be an unfair dismissal claim if time served permitted, then they can take the matter up with the accountancy body as due to time served it is outside the jurisdiction of the ET. The threat that this matter might go to the professional body might have a bearing on the outcome of the appeal, no accountancy firm will want to be investigated in this way, particularly if the complaint is made against the firm itself, it is a nightmare in terms of time and inconvenience. Taking a complaint to a professional body can also be a lot of work for the complainant too, I must caution.

 

But to go to the appeal and then wait for the outcome before raising any concerns is going to weaken any case the OP's wife might have, and will be what the firm will want the OP's wife to do. There are ways in which this can at least be investigated by an external party, the OP's wife should decide on the desired outcome, whether it be to keep her job, have the matter looked at externally, or get some form of settlement, and act accordingly. But the decision should be made quickly, and I wouldn't advise just going to the appeal, seeing what happens with that, and deciding from there what to do next, best to decide now.

[altobelli]

I hear where you are coming from, altobelli. However, the difference between the theorectical world and the real one is vast. The tribunal will reject any discrimination claim made in retrospect. She would need to have claimed it at the time. Case law is littered with wounded claimants who claimed discrimination after they were sacked / or disciplined. It is a common pitfall. People do not realise you must raise a proper grievance about discrimination.

 

If craigmac's wife has witnessed or complained about race/nationality prejudice in the past, then she might have a case. Doe she have colleagues she can ask around?

 

Question: who is after her job? Qui bueno (..sp?)? (Who benefits from your wife's departure?) This will be the root cause and the answer to your question.

 

Pussillanimous, my argument is that the disciplinary process and the action taken is itself potentially discriminatory. Consider an extreme case where nothing untowards has previously happened but a person is called to a disciplinary meeting and told 'we're sacking you because of your gender/race'. This would clearly be discriminatory. Now, most employers are going to take a more subtle approach than this. It is clear in this case that performace issues have nothing to do with the reason for dismissal. This raises the question of why the OP's wife has been dismissed, and discrimination could be a possible outcome. It could be due to race, it could be due to gender (the OP's wife may have worked in an otherwise all male team and be seen as some sort of threat by the female partner). It could just be a personality issue unrelated to race or gender, or it could be, as you say, that someone else was after the job. But the possibility of discrimination remains, and the OP's wife should try and recollect other behaviour, which although seemingly inconsequential at the time, in the light of the disciplinary and dismissal, indicates underlying discrimination. This is why it is so important to raise discrimination (if that is what the OP's wife genuinely believes has happened) at the appeal.

 

I don't know that a case would necessarily succeed, but it would at least provide the opportunity for the partner's actions to be scrutinised externally. The threat of a case, or having a case in progress, may also lead to the employer offering a settlement (some employers will always settle such claims out of court, and some employer's employment insurers will insist on settling out of court in some cases). The ET system is also littered with claims which may not succeed if they go to court, but which are settled because it is cheaper to do so or because employer's actions will not stand up well to public scrutiny.

[altobelli]

altobelli, nice theories

 

1. please find half a dozen documented cases where an acountancy body has intervened in such circumstances; I know of none but am happy to be educated

 

2, please provide an example or two of where an ET has succeeded due to discrmination at the stage of disiplinary proceedings *only*

 

without robust case law and audit trails everything you say is just what you "reckon", which is no basis to embark on a stressful path.

 

Thanks Emmzzi, I think so too! And they're even better when put into practice.

 

In answer to your points:

 

1. The accountancy bodies are duty bound to investigate those cases which potentially breach their code of conduct. For some accountancy bodies, this includes employee matters where a lack of integrity has been shown or where there has been a failure to train staff. Not all accountancy body publishes full details of every case under investigation, e.g. recent Equitable Life case where the identity of the accused or the specific details of the investigation was not made public.

 

2. There is no comprehensive database of ET cases available online as far as I know, so your request is not possible to answer. But you seem to be saying that if a disciplinary process is carried out and a person explicitly sacked due to their gender or race, then that is not discrimination (I know this is not what happened in the case of the OP's wife, but that is the hypothetical case I gave). That can't be right. I'm not saying the case will rest solely on the disciplinary, the OP's wife would need to produce examples of behaviour, which though seemingly inconsequential and not worthy of complaint at the time, could in the light of the disciplinary process perhaps have been discriminatory. Anyway, as I've said, and I really don't know how I can make this any clearer, if the OP's wife raises a discrimination case, it may not succeed. But she will have the satisfaction of her day in court and the partner having to explain her actions, and the firm may well settle before it gets to that stage.

 

Raising any concerns at an appeal will provide an audit trail, as will the firm's response to them.

 

Why do you feel there is no basis to the OP's wife raising a claim or making a claim to the accountancy body? You can only say that if you've seen the claim once it has been raised, considered it and responded to each and every point. That is what a court will do if it goes to a hearing. I you pre-judge a claim before you've seen it of course its outcome will be decided in the way you'd like it to be.

 

Yes, the process will be stressful, but then so is the feeling of allowing a bully to 'win' and feeling powerless to do anything about it. My point is, there may be ways where the actions of the employer can be put under the spotlight and made to be explained. It is up to the OP's wife to decide what route to take.

[altobelli]

Given the unavailability of public data I mentioned and also the fact that I can't see what the examples would prove bearing in mind my last post, I don't see much benefit in trawling through the internet for hours trying to find some. If the OP wishes me to I'll try and source some case law. But if you're able to find half a dozen cases where diferrent accountancy bodies rejected complaints in similar circumstances and a couple of ET cases where a cooked up disciplinary process and dismissal was found not to constitute discrimination and where the judge complemented the employer on their actions I'll be very impressed! But much more interesting would be to see data on the number of discrimination claims settled out of court, especially when a two-year time service was in place in relation to unfair dismissal claims.

 

Its not about iron-clad cases at this stage, its about the OP's wife using whatever leverage she may have to allow her to have some closure.