Constructive unfair dismissal from a uni

[agy100]

 

Would you say that the most relied-upon claim is that of a breach of 'the duty of trust and confidence', whether this applies to the OP or not...?

 

Could you re-phrase your question?

[Grotesque]

Could you re-phrase your question?

 

Well, not really a question for you to have to answer personally, unless you happened to be a Lecturer in Industrial Relations of course just that, every contract has- whether implied or expressed- a 'duty of trust and confidence' between Employer and Employee. Note that it is a mutual duty. And I was merely wondering 'out loud' whether this is the breach that is most commonly cited in CD claims. I would think so, but do not no the stats (if any). Anyway my final query was whether the breakdown of relations between you and the Uni were strong enough to constitute such a claim?

[agy100]

Well, not really a question for you to have to answer personally, unless you happened to be a Lecturer in Industrial Relations of course just that, every contract has- whether implied or expressed- a 'duty of trust and confidence' between Employer and Employee. Note that it is a mutual duty. And I was merely wondering 'out loud' whether this is the breach that is most commonly cited in CD claims. I would think so, but do not no the stats (if any). Anyway my final query was whether the breakdown of relations between you and the Uni were strong enough to constitute such a claim?

 

- No I am not a Lecturer in Industrial Relations. I lectured on management.

 

- Precisely I am going along the line of the employer undermined the term of trust and confidence through a serious of events to such an extent that I had to resign.

[agy100]

First of all, really appreciate your comments.

 

There were two investigations my manager set up in a letter to me on 15/11/2011, one to investigate my allegations of his bullying behaviours to me, and the second is to investigate his allegations of my "conduct", namely refusing to attend his meetings.

 

The first is his response to my accusing him of bullying in an email. HR asked me whether I wanted to raise a formal complaint, I said yes but I would do it in December as I was busy teaching. The staff grievance procedure requires who ever complains to complete a form to start a formal complaint but he took it on himself to start the investigation, which was very odd to me at the time. But I went along with it, and went through meetings and two appeals right to the Principal, who in the end delegated the final appeal hearing to one of the Snr Deputy Principal (he will be one of the two witnesses). So this investigation was completed, and surprise surprise, my appeals were dismissed (the last of which was 6/8/2012).

 

I have a number of issues with this investigation of his bullying:

 

- initiated by the manager, not in line with the grievance procedures;

- calculated to confuse so that I would not start my "formal complaint" but I did not know at that time;

- I put forward a colleague as a witness, who was interviewed, but the interview was not minuted, allegedly for the reason of anonymity with the witness's agreement. Yet the witness prompted me to request for the interview record at the time! When my witness learned about no record of the meeting being created, she referred to it as a "procedural irregularity";

- there are other delays to the investigation devious from the grievance procedure (the procedure says some should happen in 10 w/days but it took 2 months etc).

 

While the first investigation was going, the second was started on me. A report was produced on 13/2/2012 but it was held back from me without consulting/informing me. I thought the investigation was dropped because the investigator suggested that manager's meeting requests may be regarded as "unreasonable management actions". By the end of August, my manager announced that he was leaving the university after 4 years of services. The majority of the colleagues were talking about celebrations. And I thought the bad days were over too. Hence I renewed my request for p/t contract change as I was still concerned about my health. On 9/11/2013, I had a meeting with one of the Snr Deputy Principals (who was acting as my interim manager by then). He told me that my contract change request was turned down, and the disciplinary investigation was to be re-instated. I snapped and walked out of the meeting as I thought that neither decisions were fair, the first ignoring my health conditions altogether, and the second a total surprise. I just felt that I did not have any trust left with the snr management to go through another investigation. I emailed my resignation two days later.

 

So yes the second investigation was not concluded, but my argument is not against the investigation itself (I went to the initial investigatory meeting after all), but about the long delay which is totally against the staff disciplinary procedure. As a result of the delay, I did not get a chance to address some of the untrue allegations against me made by the bullying manager.

 

This is to give a bit of background to the two investigations.

 

I should add that the second investigation (the disciplinary investigation on my "conduct") was totally unjustified. The investigation was supposed to focus on two meetings I refused to attend: one for 2/8/2011, and the other 4/11/2011. The investigation was unjustified for the following reasons:

 

- At the time of investigating being initiated on 15/11/2011, more than three months had elapsed from 2/8/11 - I need to check the internal procedure whether there is some sort of time restriction on how far the manager would be allowed to go back in bringing such an action on an employee;

 

- I had a pre-scheduled meeting with the manager on 28/9/2011 so the employer cannot accuse me of not responding to his meetings at all.

 

- For the 4/11 meeting due to my teaching engagements, I asked it to be moved to December yet the manager/HR insisted that it had to be that day. This is just a hallmark of the bullying behaviours on the manager's side!

[steampowered]

agy100, so you raised an allegation of bullying in November but did not raise a formal grievance until December? This is the kind of thing you can expect to be cross-examined on if you reach Tribunal.

 

I think your argument that the employer did something wrong by investigating your complaint against the manager is not strong.

 

The re-instatement of disciplinary proceedings against you in February sounds like a much stronger argument, although the Tribunal would still need to be convinced that (1) this action was a breach of contract, and (2) the employer's conduct was bad enough to justify CD.

 

And I was merely wondering 'out loud' whether this is the breach that is most commonly cited in CD claims.

 

It is a very common point because it is very broad. Very popular among litigants in person. It is very often added as an additional argument supporting more specific points.

 

Because it is potentially such a wide argument, the courts have limited it. It is necessary to prove that the employer had no "reasonable and proper cause" for the actions in question. In other words, unlike many other employers, it is not enough to show that the employer was unreasonable - you must prove they acted irrationally or perversely. The burden of proof is very high.

[Pusillanimous]

Agy100 TBH a claim for constructive dismissal will cause you enormous stress, for little return, I believe, basic statutory award and loss of pay (now capped at one year's pay and income taxable). I would consider amending your claim to include failure to provide reasonable adjustment, if your health condition is a long-term one and your GP can write you a report specifying how it restricts you in the workplace, as a disability, the reasonable adjustment being the need to work part-time. Only the tribunal can decide on this. If you can get an expert witness to come along (cost about £600) specialising in the effects of your particular type of stress disorder then that will strengthen your case considerably. Then you can argue discrimination in not allowing you to apply for the masters marker job. Health & Safety does not come under the tribunal jurisdiction, except for public interest disclosure cases, so would not be relevant to you.

 

Alternatively, you might want to consider finding a lawyer who will write a settlement letter to bring closure to the issue.

[agy100]

Hi guys, not been here for a while. Now getting nearer to the Hearing on 2 December!

 

Would anyone be able to share your wisdom on the following question:

 

- Should my "schedule of loss" be part of the bundle for the Hearing?

 

I sent my schedule of loss to the Respondent's lawyer. He has included it in their part of the bundle and also wants all the mitigation evidence. I feel this will distract the bundle away from the actual evidence of the case. Can I prepare a separate "mitigation bundle" and submit it at some point of the hearing?

 

Thanks in advance.

[steampowered]

Yes, the bundle should include the Schedule of Loss.

 

The bundle is supposed to be one source including everything and anything that the Tribunal might need to refer to. Providing a separate mitigation bundle is a nice idea but it is not the done thing, the Tribunal will not appreciate it.

 

Don't worry about distracting the Tribunal. The bundle is there to assist with the hearing not act as an independent source, the Tribunal is not likely to spend much time leafing through it. You need to specifically draw the Tribunal's attention to the relevant parts of your bundle as you give evidence through your witness statement.

[agy100]

OK - thanks for that. I will add the lot into the bundle.

 

I presume the same goes for the List of Issues?

[steampowered]

Yes, if you might want to show it to the Tribunal it needs to be in the bundle

[agy100]

Would anyone be able to help on the following issue:

 

I have spotted in the letter from the Tribunal about the witness arrangement:

 

"You are responsible for making sure that all the witnesses you want to call can

attend the hearing and know the place, date and time of the hearing.

Please note

that the use of prepared witness statements will not be permitted unless their use

has been ordered by, or otherwise agreed to, by the Tribunal

."

 

I have not called for any witness myself, but I did ask a former colleague to provide an email about a meeting she had with the management on an issue related to my case. Would her email constitute as a "prepared witness statement" and not be permitted? Should I leave it out of my bundle now and take it to the Hearing to ask for permission to use as evidence first?

 

Any comment/help is much appreciated.

[Emmzzi]

As I understand it a prepared witness statement is a statement the witness has prepared that they read out in court and then get questioned about.

 

I suspect this court may have seen cases with dozens of people dragged out to all say the same thing.. so may want a check in order to manage time?

[agy100]

Thanks - that helps!

 

Another thing is the List of Issues. I must have seen somewhere to construct a list of issues with a series of "Question + If yes + more questions" like the following:

1. Did the Claimant make complaints of bullying against his manager on 28/10/2011?

a. If yes, did the Claimant express a clear wish to HR about raising a formal complaint on 2/11/2011?

b. If yes, did the manager initiate an investigation on the bullying allegations on 15/11/2011 instead?

c. If yes, was this investigation initiated in line with any internal procedures?

d. If not, did the manager claim that the investigation was “formal”?

e. If yes, could the Claimant be misled to think that this was a “formal” investigation?

f. If yes, would that deflect the Claimant from raising a formal complaint following the internal grievance procedure?

g. If yes, could HR be supporting the manager in setting up the investigation NOT in line with internal procedures?

h. If yes, did HR fulfill its duty of care to the Claimant in terms of the Claimant’s right of complaint according to the internal grievance procedure?

i. Did the actions of the Respondent on dealing with the Claimant’s complaint of bullying strengthen or weaken the Claimant’s trust and confidence with the Respondent?

...

 

I find the "If yes" approach quite helpful in focusing the mind but I have a few questions:

 

- Not everything falls into a linear argument so I guess I shall use a mixture of "If yes" structure and stand-alone questions. Or shall I adopt one way or another?

- Is this approach too detailed?

 

And do you have a good sample of "List of Issues" to share?

 

Any help is much appreciated:).

[agy100]

The List of issues is now submitted as part of my bundle.

 

Another decision to make:

 

I submitted a request for documents from the Respondent, and they replies with some omissions. I applied for an order for additional information/documents. The Respondent replied with nothing (dismissing my requests claiming irrelevance). Following that, the Tribunal has just emailed me with a letter from the Clerk:

 

"Employment Judge MJ has instructed that I ask whether you insist on the Order being granted having seen the respondent’s reply. If so, the case will be listed for a Preliminary Hearing to determine the application."

 

I would like to see the Respondent to release documents but did not expect another "Preliminary Hearing" as the Hearing is less than 2 weeks away!

 

Any advice what I should?

Edited November 20, 2013 by agy100

[agy100]

I called the ET, and was told that the Pre-Hearing was most likely to be arranged in the morning set aside for the Hearing, and push out the formal hearing if necessary. Thta makes sense but I will not delay the formal hearing so I will rely on the documents I have.

[agy100]

Well, I had a roller-coaster period of time, having had the highs of the trial and the lows of getting the judgement outcome!

 

I felt high at the time of the trial as I thought I presented a good case, said what I wanted to say.

 

But the judge seemed to have taken the respondent's side and came with a surprising outcome: I failed my case - very depressing!

 

There are a number of points based on which I can ask for a reconsideration and/or appeal. But then I am already feeling emotionally exhausted.

 

Does anyone know if the reconsideration will be undertaken by the same judge or not? I have been told that I will need to pay £100-350 to have the judgement reconsidered so I would like to know how it might pan out beforehand.

[agy100]

Well, I had a roller-coaster period of time, having had the highs of the trial and the lows of getting the judgement outcome!

 

I felt high at the time of the trial as I thought I presented a good case, said what I wanted to say.

 

But the judge seemed to have taken the respondent's side and came with a surprising outcome: I failed my case - very depressing!

 

There are a number of points based on which I can ask for a reconsideration and/or appeal. But then I am already feeling emotionally exhausted.

 

Does anyone know if the reconsideration will be undertaken by the same judge or not? I have been told that I will need to pay £100-350 to have the judgement reconsidered so I would like to know how it might pan out beforehand.

---

 

Here is the answer to my own question, just for the benefit of any future reader:

 

The reconsideration fees only apply if a case is lodged after 29th July 2013 when fees were introduced.

 

Whether it is £100 or £350 depends on the type of case, or which jurisdiction it falls under. If it is a case of constructive unfair dismissal, it is £350. Calling the Tribunal is the best and quickest way to find out.

[agy100]

One of the aftermath effects following the judgment is that the Respondent has made a request for me to pay part of their legal expenses amounting to £7,000! The Tribunal has asked me to write with reasons for them not considering this request.

 

The Respondent's request cites Rule 76 (1) (a) & (b) of the Employment Tribunals (Constitution and Rules of procedure) Regulations 2013 (the Rules) for their request. I guess I just need to deal with this particular rule. Rule 76 states that : (1) A Tribunal may make a costs or a preparation time order, and shall consider whether to do so, where it considered that -

(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

(b) any claim or response had no reasonable prospect of success.

I can deal with (a) by saying that I had brought the case forward for the sake of justice, not for any vexation. As evident in the stages leading to the full Hearing and during the Hearing, I prepared for the case every step of the way as much as I could have done, and participated in the Hearing in a reasonable and honourable manner.

 

Regarding (b), the Tribunal itself had not indicated upfront that my case "had no reasonable prospect of success" . If it had done that and I still insisted on the case, they would have demanded certain deposit. Is this correct?

 

The Respondent did offer me independent legal advice up to £500, which I took up. While that legal advice I received did suggest that the case is unlikely to win, I believed and I still believe that that advice was based on flawed understandings of the case (which I pointed out to the lawyer in an email and I intend to forward this email to the Tribunal).

 

Any suggestion is welcomed to strengthen my arguments to persuade the Tribunal to reject the respondent's request for expenses order.

 

Thanks in advance!

[honeybee13]

Hello again Agy, I'm sorry that this is where you've ended up after all your work.

 

Hopefully the forum guys will be along soon with ideas for you.

 

HB

[agy100]

HB - thanks!

 

Being a newbie in an ET court room, I learned a number of lessons. The most important one is perhaps for any future claimant to ALWAYS ask for a full panel of judges upfront - do not save money for the ET! I made the mistake of not asking for a full panel, thinking that the process will be more streamlined and speedier. It probably was, but a speedier but unfavourable judgment is just rotten useless!

 

It is just probable that a single individual judge may get away with errors and mis-understandings a lot easier than with a panel of judges. My judge for some reason has chosen to favour the respondent's evidence - impossible to explain even with clear written evidence presented. I have the distinctive feeling that the institutions are there to protect each other. Maybe that is what a judge has to do if he or she has to come down to a yes or no judgment. The reconsideration process is simply useless as it asks the original judge to reconsider his or her own judgment. What is the chance of any ET verdict to be revoked by the original judge?!

 

A full panel will provide some balance to the judgment process - I really wish I knew that.