Unfair Call to Disciplinary Hearing

[Paul61]

Yesterday, I received a letter from my employer calling me to a disciplinary hearing. The letter cites numerous conduct and performance-related issues and states that a possible conclusion of the hearing is dismissal. I have been with the company for six month, successfully going through my probation period, and have never be told verbally or in writing that my performance did not meet the requirements of the job until yesterday. Two and a half months ago, the company employed a part-time worker and I was told she was there to assist. She was made full-time last month with a salary £6k above mine and on a company pension (which I am not); further, she is less qualified than me. Yesterday, before I received notification of the disciplinary hearing, this colleague was asked by our boss whether I had "filled all knowledge gaps with her since the company could not afford to employ both staff". I have seen a change of attitude by my boss towards me since just before the new arrival, and his actions led me to believe the company wanted to get rid of me. Now this seems are very real likelihood. Furthermore, the company is small and my boss (also a director) is married to the other Director, and they will both be present at my hearing. I know I have been falsely accused, know also they have decided to terminate my contract regardless of the case I present, and also know that I cannot possibly get a fair hearing. Please, what should I do?

PS Sorry for the length of this thread; stressed out and need to present a clear picture. Thanks

[altobelli]

Hi Paul, I'm guessing you are male? Just trying to establish whether there could be a discrimination element to your case.

[Paul61]

Thanks for your response altobelli. I am actually female. What I have tied to set out in my first post is that the Directors have engineered the process leading to this disciplinary and have done it in a time frame that is suitable to them, ie I have been given no indication of performance-related issues and only receive the disciplinary hearing letter when the Directors have confirmed that I have "filled all knowledge gaps". Surely, disciplinary procedures are not meant to be used so cynically by employers?

[altobelli]

Sorry for my assumption.

 

It is certainly unfair what they're doing, workplace disciplinaries are notorious for the outcome being decided in advance. Unfortunately, unless there is a discrimination or other tack to go on, there isn't really much protection against this type of thing in the first two years of employment. I would advise making as strong a defense as possible in writing, and make sure you ascertain exactly what the concerns are and why these weren't raised before. 'Filling all knowledge gaps' is very vague, they should really give you a detailed list of what is expected in order to allow you to defend yourself and have the chance to improve, if there are actually any areas which need improving. Who actually complained about you - was it your boss? And who will be hearing the grievance - if both directors, then who hears your appeal?

 

Is what is happening causing you stress? If so, this could be something to bring up.

 

Are you in a trade union?

[Paul61]

In terms of filling knowledge gaps, that was asked to my colleague by our Boss, presumably to ensure that she is capable of taking over from me when they sack me. So, you are suggesting I give them a written defense, and should it supply that with them in advance of the disciplinary meeting?

 

Thanks

[Paul61]

Also altobelli, both directors (married) will be in my disciplinary hearing and I can only assume that will be the same for an appeal hearing - there's nobody else. So I can't expect a fair hearing or appeal.

 

Of course this has really stressed me out, and not just since yesterday. I have even been to my GP about three weeks ago about headaches and sleeplessness. Thanks again

[becky2585]

Hello

 

Sorry to be the bearer of bad news, but as you haven't been there 2 years, they can dismiss you for almost any reason and there isn't anything you can do about it. It doesn't even have to be a good reason, or a true reason - it just needs not to be discriminatory!

 

Yes, it's unfair - but it isn't anything you can change, regardless of whether the hearing is fair and impartial or not! Full employment rights only kick in after 2 years, so unless they have discriminated against you (which I don't think they have, not legally anyway) then you would be best putting your energy into finding a new job with an employer that treats their staff with more respect.

[Paul61]

Hi Becky2585

 

I know that unfair dismissal is not possible, but wrongful dismissal is I think. I have read that a breach of contract by employer, which can include false allegations of misconduct, results in wrongful dismissal. Now whether that can be proven is a different point altogether. The final accusation made to me in the letter was that I misrepresented my skills at interview, which is nonsense, since I do not need to embellish my CV or skills at interview. Nonetheless, this accusation touches on fraud. Surely, I must have someway of combating such untruths that have the potential to destroy my career?

 

Thanks

[Ell-enn]

Is the disciplinary procedure contractual ?

[Paul61]

Hi Ell-enn

 

Do you mean is it referred to in my contract? It's not and I have never seen their disciplinary and grievance policy and actually don't think they have one. I have asked to be supplied with a copy and they are just procrastinating.

 

Thanks

[becky2585]

Yes, wrongful dismissal is where you are dismissed without your correct notice being paid.

 

In gross misconduct, that's no notice entitlement. Otherwise, it's either one week or the notice stated in your contract, whichever the greater.

 

This isn't gross misconduct so you're entitled to notice pay and any accrued but untaken holiday pay.

[Paul61]

Hi Becky2585

 

So the fact that the allegations leading to this disciplinary action are baseless and I can prove it appears irrelevant; I just have to go through the sham of a process, get sacked and walk away with my professional reputation in tatters and a few hundred pounds in my pocket? Surely not, employment law can't be so one sided can it?

[becky2585]

Unfortunately, that's about how it is. It's different after two years in employment, though.

[Paul61]

Thanks Becky2585, but I have read that wrongful dismissal can also be claimed in the event of an employer bringing false allegations of misconduct, which is also classified as breech of contract.

[becky2585]

Wrongful dismissal is the term for a dismissal in breach of contract. Fairness is not an issue, the sole question is whether the terms of the contract have been breached. A Tribunal won't concern itself with the reasonableness of the dismissal.

 

The primary reason for claiming wrongful dismissal is for notice pay, but if a disciplinary or redundancy procedure is contractual and is breached, there could be compensation payable. The compensation would reflect the amount of time it would have taken to follow the procedure (e.g. two weeks). However, there isn't a disciplinary policy in force at your employer, therefore that isn't a claim that is open to be pursued.

[Paul61]

Sorry to keep firing questions at you Becky2585, but how am I supposed to know what process is being followed, and if it is being followed correctly, when there are no written policies and no mention in my contract?

[becky2585]

If one doesn't exist, you don't need to concern yourself with it as you can only sue for wrongful dismissal (procedure) on a written and contractual disciplinary procedure. By law, they are supposed to have one (and they are usually non-contractual) - but many small employers do not!

 

But you're right - in that situation, you look at the ACAS Code of Practice on Disciplinary & Grievances - but that only now applies to those with over one or two years' service, depending on when they commenced employment.

[Paul61]

OK, thanks for your advice Becky 2585.

[Paul61]

Hi

 

I received a letter from my boss at 5pm on Thursday 22nd November 2012 calling me to a disciplinary meeting taking place at 10 am 27th November, which is two working day's notice. The allegations are numerous and serious and will need to exercise my right for a co-worker to be present and call on witnesses. I felt that I could not do this and adequately prepare my case in the time given, so requested a postponement of 5 days. I handed this letter to my Boss at 9am on Friday morning 23rd November. At 5pm that day I was handed a letter refusing a postponement. Now I just have this weekend to prepare, cannot access computer files that could support my case and feel I have insufficient time to prepare my companion.

 

Please help. What can I do about this situation? I have been trying to contact the ACAS helpline since Thursday evening and have, as yet, failed to get through.

 

Thanks

[becky2585]

Hello

 

Do you need access to your work computer? Could you do this on Monday?

 

Can you arrange a companion on Monday?

 

Whilst five days is legally probably adequate notice (working days and weekends are taken into account) if your chosen companion can't attend, you can again request a postponement. It would be unfair to expect you to go unaccompanied when you requested a companion.

[honeybee13]

Hello again.

 

I've merged your threads together to keep all the information in one place.

 

HB

[Paul61]

I do need access to the work computer and perhaps can do this over lunch on Monday or after work, assuming I am given permission to do so. I have just called the person I would like to accompany me to the disciplinary and she tells me that on Friday the boss took her to lunch on Friday and showed her the two letter (his to me and mine requesting a postponement) to her. I thought that these were supposed to be private?