Help with ET1 and general guidance

[Dam1on]

Hi All,

 

I was dismissed on grounds of gross misconduct on 30th November 2012. There were two reasons for this dismissal outlined in my dismissal letter:-

 

1, That i instructed, either directly or by "inference or omission", someone who reports to me to to falsify company documentation.

2, That I failed to correctly hand over information relevant to the issue above and in doing so failed to follow the company Quality and Health & Safety Procedures.

 

The incident was investigated independently (internal, different department) where the two issues were highlighted and disciplinary action recommended. There were a number of mitigating factors highlighted and as such the requirement for disciplinary action was to be based on a balance of probabilities, i.e. was this intentional fraud and an attempt to cover it up.

 

There are a number of issues surrounding the investigation and disciplinary process that did not follow the company procedures: -

 

1, The Company Disciplinary Procedure states that any disciplinary action will be proceeded by a full and prompt investigation. The incident occurred on the night shift of 30th of September yet, although it was immediately apparent, was not investigated until 24th October. When the investigation took place it failed to interview all the people that could have clarified the first point.

 

2, The charge of breaching Quality and H&S procedure could be levelled at nearly any mistake but if this was sufficiently serious there are reporting procedures for reporting both Quality and H&S failures. No such reports were raised as, at the time, nobody saw this as that significant.

 

At my first disciplinary hearing on 13th Nov it was not made clear to me exactly at what level I was being disciplined i.e. there was not a statement saying "you did X and Y and this constitutes gross misconduct". This is important as this hearing went on for over three hours and was more of a fishing/muck spreading exercise. In the last 15 minutes I was shown a set of notes claiming to be notes of two conversations me and my manager had on the 5th & 15th of October (also failure of procedure not to disclose before hand). These notes contradicted my recollection of events and, on the surface, appeared to cast doubt on my truthfulness. This hearing was suspended, as was I, until the meeting was reconvened on 27th November.

 

The second hearing was relatively brief and added little to the matter. I was informed in writing that I was to be summarily dismissed on the grounds of gross misconduct effective immediately,

 

I appealed this decision on the 21st of December and I was informed in writing on the 7th of Jan 2013 that the appeal was not upheld.

 

In their response the company agreed that there was no evidence that I had intentionally instructed the falsification of documentation. They withdrew the notes of 5th and 15 of October as I had shown them to be either poor reflections or in fact fictions. They withdrew claims that testimony supported their case when it did no such thing. Instead they have liberally sprinkled the word Neglect around and are stating now that the reasons for my dismissal are unchanged.

 

They are basically saying that through neglect I caused the falsification of company documents by inference or omission.

 

There are many mitigating factors surrounding the initial mistakes which I have not had an opportunity to defend. On paper this incident looks serious to those not experienced in my field but in reality there were no consequences and could have been no consequences because of these errors. There is a general level of shock and outrage amongst my former colleagues that this has happened.

 

I could go on all day, but thanks for reading and ANY advice is greatly appreciated.

 

Damion

 

Edit, sorry I have the full account in a word document which is currently at ten pages and getting longer, I'm trying to condense this down a little for the ET1 and clarify reasons that will appeal to a tribunal.

Edited January 30, 2013 by Dam1on

[SNALF]

Hi Damion. Can you check the original letter that invited you to a disciplinary hearing? Did it state that termination was a potential outcome? Also, how long have you been employed?

[SweetLorraine]

Hi damion,

 

welcome; you have told us the unfortunate circumstances but you have not explained what help you want or indeed that you are going to submit a claim (I assume you are). What sort of guidance are you after?

[Dam1on]

By 'eck you guys are quick.

 

No there is no mention of termination or any consequence for that matter and I have been there for 11 years, six in my current role with a clean disciplinary record and above agerage appraisal record.

 

Thx

 

Damion

[Dam1on]

Hi Lorraine,

 

Yes I do intend to claim for unfair dismissal, I'm not sure on what grounds. At all points the Company has been a bit wooly about what I was being disciplined for. It is starting to look like they put this "intentional Falsification" charge up as a strawman to stop me contesting the many mitigating factors surrounding the original errors and to be honest I don't really know how to move forward.

 

I would like some help condensing my story into something concise and also help with identifying suitable grounds to appeal.

 

Thx

 

Damion

[honeybee13]

Hello Damion.

 

I can see the guys are looking after you. You're aware of the time limit for submitting an ET1?

 

My best, HB

[SweetLorraine]

Hi Dam1on,

 

Good point about the time limit - it would appear from your first post that you only have until near the end of February - but give yourself a week/few days grace just to be sure (it also stops the respondent trying it on about deadlines and trying to get the claim struck out without a hearing taking place).

[Dam1on]

Cheers HB & Lorraine, am aware of the 3 month limit but fair point about the weeks grace.

 

Damion

[SNALF]

Hi Damion. What grounds are you intending to appeal on? The dismissal was procedurally unfair for a start as they have to make you aware at the beginning of the process if it is deemed gross misconduct and could result in your dismissal. This should have been the basis of your appeal but I understand that the chance of appeal has gone now. What other grounds are you claiming on?

[Dam1on]

Hi Damion. What grounds are you intending to appeal on? The dismissal was procedurally unfair for a start as they have to make you aware at the beginning of the process if it is deemed gross misconduct and could result in your dismissal. This should have been the basis of your appeal but I understand that the chance of appeal has gone now. What other grounds are you claiming on?

 

Primarily on that context. They made no mention of GM or dismissal at my first hearing. It was only when the meeting notes of the 5/11 were sprung on me that they suspended that hearing. I was then sent another letter to reconvene which did state GM and possible dismissal.

 

The whole thing from beginning to end has been handled very poorly. It is my belief that niether my manager or the departmental manager thought particularly much of this event until it came up in a management meeting two weeks later, then they were seen not to be doing anything.

 

The buisness is a mess with a host of mistakes being made in all departments and of much more significance than this one. Unfortunately for my this is probably the first to be directly linked to somebody in a supervisory role.

 

I'm really looking for some advice on what constitutes neglect and how I can defend this aspect and how this term 'by inference or omission' works.

 

Thx

 

Damion

[SweetLorraine]

Hi Dam1on,

 

you should get hold of any of your company's disciplinary policy documents to maybe highlight where they have not stuck to procedures.

 

At this stage you should be looking to submit your claim (form ET1). You will have time to hone your case and prepare your witness statement ahead of the full hearing. You don't have to be wholly prepared ahead of getting an ET1 in.

 

Do you want me to give you a brief note on what is required for the ET1?

[Dam1on]

Hi Dam1on,

 

you should get hold of any of your company's disciplinary policy documents to maybe highlight where they have not stuck to procedures.

 

At this stage you should be looking to submit your claim (form ET1). You will have time to hone your case and prepare your witness statement ahead of the full hearing. You don't have to be wholly prepared ahead of getting an ET1 in.

 

Do you want me to give you a brief note on what is required for the ET1?

 

That's fantastic Lorraine.

 

I was worried that once submitted things could not be changed so was trying to put as much in as possible. A note pointing out what's required would be very helpful.

 

Thx

 

Damion

[SweetLorraine]

OK,

 

there are a number f contact details you have to fill in of course. The main input into the ET1 is your claim of course. (This claim can also be referred to as a 'pleading' on occasions).

 

Anything not included in the ET1 is considered not to be part of the claim (though you can possibly amend an ET1 sometimes - but it doesn't always go down well with the Tribunal), so you will have to include all the legal issues relating to your claim. Therefore if you are going for unfair dismissal, that would be have to be clearly flagged up in the ET1.

 

You are seeking at this (ET1) stage to lay out the main facts of your complaint (as you see it) and the legal basis of your claim, so you don't have to argue about evidence and all the legal issues in the ET1.

 

If you can set out clearly the main facts of your case and what you are claiming it will help the Tribunal panel (at the main hearing) understand what you are getting at. Respondent's legal representatives may seek to muddy the waters at the hearing - so a clear concise ET1 statement can help nullify some of the respondent's tactics.

 

I'm not a legal professional myself, and I trust that one ot two of those that are come along and add to this basic note.

 

(As always) I will flag up the following site for you to take a loo at (etclaims.co.uk) and suggest you might try to get hold of a copy of the book mentioned on there. I didn't come across it until after my case management discussion meeting (CMD) and I wish I had had it from the beginning - it would have saved me a small fortune in solicitors fees at that time.

[Dam1on]

Thx for this Lorraine, I've been reading through you're links and am starting to make some progress.

[SweetLorraine]

Good luck Dam1on,

 

stay in touch with the forum and feel free to ask questions, they are plenty of others better equipped than myself who can help you along the way.

 

I have only recently noticed the Search CAG box at the top of the screen (which shows you how switched on I am!) that might be pretty useful for picking up previous threads that deal with issues you might be interested in?

[Dam1on]

Hi Lorraine

This is what I intend to put in the ET1

I would like yourself and anyone else for that matter to cast a crittical eye over it. I know it's a bit long winded but this is not a simple matter. Trust me it's only a quarter of it's original length.

Thanks Damion

 

I believe I have been unfairly and wrongfully dismissed for the following reasons.

 

According to the ACAS code of practice and the Company’s own procedure issues should be dealt with promptly and properly investigated.

Despite the incident, that occurred on September 30th, being immediately apparent the investigation was not carried out until twenty four days had passed. Although not procedure, it has become common practice in the event of significant issues that the Shift leader, Shift Chemist or even Operator is contacted the next day by phone or even called into work to explain events; this did not happen in my case. There was a brief informal discussion held between me and my manager on the 5th October which was my first scheduled shift back since the incident and another on the 15th October. It did not appear to me at this point the event was being seen with as of great significance. My first disciplinary hearing was November 13th which was adjourned and reconvened on November 27th. As the relevant instructions were oral and witnessed it was important that these testimonies were gathered from all available witnesses and gathered promptly, neither happened.

 

The ACAS code of practice states that notifications for disciplinary hearings should contain sufficient information about the alleged misconduct or poor performance and its possible consequences.

 

Whilst the description of the event was clear and accurate it was not clear whether I was being disciplined for poor performance, misconduct or gross misconduct and I was not made aware of any possible consequences; as a result I could not prepare a full defence.

 

The ACAS code of practice and the Company’s procedure states that copies of written evidence and witness statements are provided prior to a hearing.

 

Towards the end of the disciplinary hearing on November 13th I was questioned about notes claiming to be taken at the time of informal discussions between my manager and me on 5th and 15th of November. I was not made aware of their existence and had no copies of these note and therefore could not prepare a full defence.

 

Company procedures dictate that in the event of health and safety or quality failings that specific reports be raised and investigated.

As part of our regulatory responsibility we have to record any variance from procedure in the form of a “Deviation”. Deviations range from incorrect number entries onto documents (e.g. 12345 instead of 12354) to charging the wrong material and ruining a batch. A massive range of significance yet no Deviation was raised for my error.

The company encourages the reporting of Accidents, Incidents and Near Misses in the form of AIR reports. AIRs range from “half cup of tea left in the canteen” to “three hundred litres of Methanol discharged to drain”, both real, yet no AIR was raised for my incident.

 

Neither of these reports was raised at the time of the incident, they did not exist at the investigation and were not present during my hearings. To the best of my knowledge these were not raised and this highlights a significant change in the Company’s attitude to this event from the time of event to the statements made in my dismissal letter and the findings of my appeal. In both incidences the event was highlighted as being a significant health & safety and compliance issue.

After my appeal the Company agreed that there was no evidence to intentionally falsify company records therefore I can see no grounds for a charge of gross misconduct.

 

The company’s argument in this case can be condensed to; through my neglect, in failing to ensure instructions were followed, I caused company documents to be falsified and that along with the “significant [sic] health & safety breaches” is gross misconduct.

 

At the time of the event the Company had not seen these as significant enough to report them in the manner set out in their own procedures.

 

If there is no gross misconduct I should not have been summarily dismissal and have therefore been wrongfully dismissed as the company has breached my contract.

 

I believe the Company had either been deliberately opaque in order to hinder my defence or at some point the disciplinary process has snowballed beyond a point where it can be stopped and those involved could maintain face.

 

There is strong evidence to suggest that the company was aware of its intent to allege I had intentionally instructed an operator falsify Company documentation. The only possible alternative is that they genuinely stumbled on this during the disciplinary hearing and at that point suspended the hearing, and I, when it was reconvened the letter I received now contained the allegation of falsification, stated this was gross misconduct and as such was grounds for summary dismissal, this was a change from my previous disciplinary. Although I defended that allegation at that hearing I was summarily dismissed on 30th November. I later appealed that decision and although the Company admitted that there was no evidence of intent nobody felt they could regress to the level at which the original hearing was being held.

 

Finally the company falsely claimed to have supporting evidence that supported their claims.

 

The Company claimed to have supporting testimony from one particular operator. They didn’t and withdrew this claim on appeal.

 

The company claimed to have notes taken, at the time, of a conversation where it is alleged that I confessed to this falsification. On appeal I challenged those note as they had not been written in my presence and were a very one sided account of that conversation. The Company also withdrew these notes on appeal.

 

The incident involving myself was a genuine good faith error. The original thought process behind the decisions made is seen as sound by all parties. The error I made was to fail to correctly communicate this to the next shift and due to a misunderstanding an operator signed off to say he had completed something he had not. To the unaccustomed these would appear serious and significant yet on closer examination there was no, and could have been no significant consequence either safety or quality. This was my first significant error in six years as a shift leader with a perfect disciplinary record and a better than average appraisal history. In total I had been with the Company for 11 years.

Edited January 31, 2013 by Dam1on

[steampowered]

Hi Damion,

 

I had a read of your ET1. I think you've done a good job breaking it down into paragraphs. The problem is that it reads like a list of unproven allegations. I cannot work out what actually happened just based on the ET1. Remember that your ET1 is the very first document that the judge will read. When he reads it he will know nothing about you, nothing about the allegations and nothing about your employer. You need to tell him your story in clear way that he can immediately follow. This is your best way to get the judge on side right from the start. If you do not do this then the judge will have to rely on the Respondent's ET3 to work out what happened.

 

You can resolve this by splitting your ET1 into two sections. First, you need to explain the background and tell your story. You should do start from the beginning and go through the various events chronologically one by one. Once you have told your story you can then point out the specific reasons why your dismissal was unfair. At the moment you have only done the last bit. To give you an idea, here is a very basic sample template for an unfair dismissal ET1:

 

1. I was employed by [NAME OF EMPLOYER] from [DATE] to [DATE].

2. The Respondent is [DESCRIBE THE BUSINESS OF THE EMPLOYER].

3. I was employed as [JOB TITLE] and my work and role involved [DESCRIBE DUTIES].

4. On [DATE] the following occurred [DESCRIBE INCIDENT].

5. Prior to my dismissal, I had received no formal or informal warnings [iF APPLICABLE].

6. On [DATE], I was informed by [METHOD AND PERSON] of the decision to dismiss me for gross misconduct on [DATE]. I was summarily dismissed without any notice pay.

7. I appealed against the decision to dismiss on the following grounds: [sET OUT DETAILS]. My appeal was heard by [NAME AND ROLE] on [DATE] and the decision to dismiss me was upheld.

8. The Respondent did not carry out a reasonable investigation into the allegation(s) against me [sET OUT DETAILS].

9. My dismissal was substantively unfair for the following reasons [sET OUT DETAILS - for example, I was not guilty of misconduct OR my misconduct was minor in nature and not sufficient to constitute gross misconduct.]

10. The disciplinary hearing and appeal process was conducted unfairly in the following ways: [sET OUT DETAILS WHICH AFFECT FAIRNESS.]

11. The Respondent failed to follow its own disciplinary procedure in the following ways: [sET OUT HOW IF APPLICABLE].

12. The Respondent failed to follow the Acas Code of Practice on Disciplinary and Grievance Procedures in the following respects: [sET OUT HOW].

13. In the circumstances I contend that my dismissal was unfair and I seek:

(a) compensation;

(b) [an order for reinstatement or re-engagement;]

© [an uplift (increase due to the Respondent's unreasonable failure to comply with the Acas Code of [up to 25]%).]

 

Don't worry too much about length. I think your ET1 needs to get longer not shorter. You should refer to specific paragraphs from your employer's policy and the Acas Code when you say that these documents were not followed.

[Dam1on]

Thanks Stempowered for reading through this. Some of the details are entered onto the online pdf form already but I will look to organise it as you suggest and add more detail.

 

Damion

[SweetLorraine]

Hi Dam1on,

 

steampowered did the business there with that template. Remember I'm not a legal person at all - just an ex-employee that went through the early stages of the ET process. It would flow better if it was told as a kind of story (as the template suggests).

 

Your ET1 should be more about you, a brief history of your career at the company (a few sentences) the events that happened, the subsequent actions by management which led to your loss of job, and why you believe this to be an unfair dismissal. That sort of thing...... as per steampowered advice.

[steampowered]

Thanks Stempowered for reading through this. Some of the details are entered onto the online pdf form already but I will look to organise it as you suggest and add more detail.

 

Damion

 

Don't worry too much about repeating yourself. It is standard practice to put all that stuff in the particulars section - it makes it easier for the judge to follow your story. You can keep most of the stuff you have already with a bit of tinkering, I just think you should put a chronological story at the start so it is clear what happened.

[Dam1on]

Just a quick thx to those that pointed me in the right direction with this case. To cut a long story short the case was settled through ACAS. legally that is pretty much all I can say.

 

Thank you.