Constructive Dismissal with Evidence.

[Anon212]

Right, where to start.

 

I work in a security department of 20 people. 10 in my department, 9 investigators above us and one director. In my 10 there are 8 at the lowest level, with a lead figure and a head of department making up the 10. There are 6 investigators that have 2 managers and a head of investigations making up the 9, and then of course the Director.

 

It is a very large firm and the security department has a very good reputation nationwide.

 

However i believe that i have a rock solid case against the company for discrimination and constructive dismissal and need advice.

 

A colleague at the same level as me was invited down to the security office and shown to an interview room. In this room he saw a tape recorder. He immediately said he wasn't happy with this and the head of our department of 10 said don't worry its just a talk and i need to be seen to be managing. He then sat my colleague down with one of the investigators and then reeled out 7 allegations of which five were considered to be Gross Misconduct. As you can imagine, my colleague was distraught! He had been an employee for five years, was very good at his job and was terrified of losing his job. The next day he called in sick and was signed off by his doctor for 2.5 months with stress. He was even referred to a psychiatrist. He was living with me as a lodger at the time of this happening.

 

He had told me what the allegations were and i knew that they were all very shaky and that they were trying to manage him out. When he came back to work he was put on shorter hours and everything seemed fine, then 3 days later the company then suspended him on 5 counts of the 7 original allegations.

 

He decided to fight the allegations and spent weeks on his defence whilst on suspension with pay. He also decided to make a grievance of his own against his manager, the lead security guy in his department and some of the investigators. Some of the grievances could be seen as whistleblowing.

 

The HR department started an investigation into these complaints from my colleague and nearly the whole directorate, including the director was called for interview as a witness, or in some cases part of the grievance.

 

I was called as a witness to one of the alleged whistleblowing incidents. I gave my evidence and also answered their questions.

 

The next day, my Head of department had to be interviewed. He had then heard the allegations against him and because two of the events involved me at the incident he has decided in his head that i was responsible for trying to take him out.

 

I was more than a little worried about what was going to happen after he came out of the interview as he is not a small guy and 3 of the allegations against him were of a violent nature. So without thinking i decided to place my phone on record in out restroom, which is shared by the investigators, whilst it was charging, and then went back out on my duties.

I finished my shift at 7pm. My manager had already left when i came down. I took my phone off charge, stopped in recording and went to get my train home.

 

I put on my headphones and started to listen. The first twenty minutes was silent and then my boss came into the restroom after his interview. He was very angry. He started talking to two people in my team. He was calling me all the nasty names under the son. He told a colleague he could easily put knife in my f***ing heart. My colleagues then started to suggest ways he could get me back. One even suggested sexual harassment. He then told them what i had said and openly admitted to the allegations to them but told them he denied everything. He then said he would start getting me and maybe tell a few lies to get me kicked out. This was said over the cause of the next hour with 7 of my team and 3 of the investigators all involved. All of this thankfully was recorded. I then didn't go into work the next day and contacted the HR department that is not located at my place of work. I had not slept that night and spent 6 hours with my girlfriend transcribing the incident with her in tears whilst we did so.

 

I took the transcript to the HR department and read it out to them under recorded conditions. I also gave them a copy of the audio. They took it and told me to get some rest and that they would contact me later. The next day they told me they had spoken to my boss and he was very remorseful, i told them i was going to contact the police because of the threat to kill and i did so. HR told me that my boss was spoken to and was currently not in the business. They also said they would be investigating the other people in my team.

 

A week later i was told by HR that my boss had resigned so they were confident i could return to work. I told them that another 10 people were implicated and compromised in the recording and i did not feel safe at all.

 

HR then said we are investigating these people and repeated that they were very confident that i could return to work. I told them i did not know where they got their confidence from and that i would not return to work until they had finished their investigation. I then got my doctor to sign me off work for 3 weeks with work related stress.

 

During this 2 week process i have had little or no sleep. i have been on edge because i fear reprisal from my know jobless boss who had threatened me just for giving evidence against him. My whole team were conspiring with him to get me not just sacked but with the sexual harassment claim, a criminal record, and three investigators were keen to help him.

 

So this is where i'm at now. They haven't spoken to me for over a week now despite me asking them what is going on via email.

 

I would like some advice on what my next move is..... I did love my job. I have been there for 7.5 years. I know my promotion was blocked on a few occasions and the last 3 people to be employed at my level, i helped train and they all became my boss. I did put in a grievance about this to the head of investigations 6 months ago and the whole directorate knew the following day.

 

I genuinely believed the way i was treated that it would've been myself that was suspended but they chose my friend. I defended him and told the truth when i was a witness. The boss had already admitted the allegations against him on my recording, but now i feel as i cannot return to work, i feel my company are largely ignoring me and if i was to leave i would be taking a £10,000 pay drop in the same job role as my current employer pays very well.

 

I don't know what to do next....

[ericsbrother]

well, your employers are doing something about your complaints so a constructive dismissal claim will go nowhere. As for the others inplicated, many of them will have siad anything to appease you bullying boss and are probably glad that he has gone so they can get on without being fearful of what may happen. I doubt if even a hothead who was offered the chance to resign will do anything after the event as they will have a lot to lose even yet. Time is a great healer so have a bit of faith in your company and go back to work. The longer you delay that the harder it will become and that wont be good for your health.

[Anon212]

Thankyou for your input. There is another issue that has arisen through this case and my friend who is at the moment suspended was given a copy (on request) of all the transcripts from the interviews (before the recording) with HR. Now going through them, even the Head of Investigations said that all the allegations have no foundation whatsoever and i think the suspended guy is just prolonging this to get a bit more money and throw muck at people in the hope some of it sticks and he gets off. Everyone else who was interviewed had already got their stories together and because the guy who was suspended lived at mine at the time of his suspension (he doesn't live there now) they have all said that we had conspired together to bring these allegations forward and they were not happy about the whole procedure. They have also said that i had told people it only takes one person to corroborate an allegation (i never said this) anyhow that was what they had all said.

 

I have since proved that the allegations were in fact true and he confessed in the recordings, but if you have 10 people all singing off the same song sheet and only two people standing up for the truth then everyone will side with the senior management. Also after seeing the transcripts i saw that my immediate superior was lying to get rid of the suspended guy and also lying to protect himself against an allegation. I have evidence for both and gave this to HR. He also conspired with my head of department to get me kicked out with the sexual harassment as did another investigator. My thinking along the lines of constructive dismissal is how on earth do i go back to work in this department when i know all this? How do i trust these people with my safety, when they were willing to see me crucified for things that i had not done. In my line of work we make arrests on a daily basis. How do i know i would have the back up in a bad situation? So if i feel that working with these people, which i need to trust with my life sometimes, is not safe. Then how do i carry on?

[steampowered]

Gosh, I don't envy the company's HR professionals who have to try and sort this mess out. The employer ultimately bears legal responsibility for the actions of a manager, even if that manager is no longer with the company - so I think that could form part of a constructive dismissal claim.

 

To succeed on CD you would need to show that you were essentially forced to resign and left with no other option. An Employment Tribunal would presumably look at the transcript and consider whether your refusal to return is justified in circumstances where the old boss is no longer working for them. I think it would be very difficult to implicate 10 people simply because they didn't stand-up to the boss. People don't normally like to speak out against superiors especially a guy like that, so I think you would need something more than silence to incriminate them.

 

Presumably, in a Tribunal the employer would try to argue that the issue was sorted through the boss leaving. That said, I do appreciate your argument that your job requires a special level of trust in your colleagues which has now been broken.

 

If you want to claim CD you need to formally state that you accept the employer's breach of contract to bring the employment relationship to an end. If you leave it too long, you will eventually be deemed to have waived any right you may have had to end the employment relationship and would forfeit a right to claim constructive dismissal. Of course, once you have resigned they will stop paying you if you are currently getting sick pay. If you are currently off and getting paid I would leave things as they are for now and resign when you would otherwise need to return to work.

 

I can certainly see the CD claim but I am slightly struggling to see the discrimination claim. It isn't obvious to me that you have been subjected to unfair treatment due to your race/gender or other legally protected characteristic. References in the recording to sexual harassment would help but I'm not sure they would be sufficient by themselves.

[Anon212]

Thankyou for your reply. I didn't want to bore people to death with all the in and outs but the grievance i put into the Head of investigations was that i believed that over the past seven years i believed that my progression within the company had been blocked. My manager had told me that when he recommended me for the position 6.5 years ago, the previous Head of investigations (who was forced to resign) had told him i do not want him, get (Mr bloggs) to apply. He only told me this after the ex Head of investigations had left the company. Then Mr Bloggs got the job (surprise surprise) but less than a year later he was caught stealing. So he was forced to resign. Then instead of putting myself into the position they killed the position. 2 years later and two more people joined the firm. Then out of the blue it was heard that they had chosen a No.2 behind closed doors and were about to announce it. I stood up and questioned this to the new Head of investigations and everyone denied it, but the rumoured person got the job. He then got promoted again 3 months later and the job role came empty again. Then the newest and youngest member to join the firm who cannot even spell properly and had no managerial experience then gets the job ahead of me again and to make matters worse they took statement writing out of the criteria for the interview because they knew he would not do so well. I have 20 years in the industry and have managerial experience so when this happened. I put in a grievance. This to me is discrimination. It does state that blocking progression is discriminatory. I felt i had good reason to bring this forward having been with the company for 7.5 years and had basically taught most of the job to these three. When i did, the news got out the following day that i had put in a complaint about the office. I started to get treated worse than before. So now i have the recording it all starts to make sense now.

[Pusillanimous]

Just walk. State constructive dismissal with reasons why in your resignation letter. Suggest they settle with you. If not, start talks with ACAS and save up for the tribunal fees.

[SabreSheep]

You mention that you are paid better than others doing the same job role in other companys.

 

You may want to weigh up the drop in pay vs what you would get if you won the CD claim. Remember Tribunals are restricted on what they can pay out on a successful outcome which is not much.

[steampowered]

i believed that my progression within the company had been blocked ... I have 20 years in the industry and have managerial experience so when this happened. I put in a grievance. This to me is discrimination.

It is perfectly legal for companies not to promote you for any reason whatsoever, even if that reason is totally unfair, unless the reason is a characteristic specifically protected by the Equality Act 2010 such as age, gender and race.

 

This would not be discrimination in the legal sense of the word unless you can prove that the company's failure to promote you was due to your age/gender/race etc.

[Anon212]

Okay thanks for all the advice guys. They have just come back to me after no communication for 8 days and said they had finished the investigation with all the other people involved. No-one has gone anywhere, leaving me in an impossible position to return to work. I cannot even imagine going back to such a hostile environment. All the people that have lied including my immediate superior, who i gave proof to the HR people investigating that he was lying under investigation, has come out of this unscathed. So i have an investigation manager, 3 investigators, and 6 colleagues who have lied in some way shape or form and they expect me to come back to work. I would be an outcast. The whole thing screams cover up and get rid of me. I guess i have no choice. What i need to know know is if anybody knows the best route to take. I am confident that the evidence i have is good. I know that a tribunal will only take me so far, but is there anything else i can claim i.e. future loss of earnings, damages etc. This isn't about the money but i have a family and a home to protect and just getting brushed aside because the company can afford a slap on the wrist is not the message i want to send.

[Emmzzi]

Ask for a professional mediator to see what can be recovered from the situation first.

[steampowered]

Well, there are basically three options:

1) Try to continue working and make the best of it - after all the people involved were just trying to save themselves

2) Keep your head down while you try to find a job elsewhere

3) Resign and claim constructive dismissal

 

I don't think your CD claim is watertight but it sounds at least reasonable. A successful CD claim would get you a relatively modest basic award, plus a compensatory award covering loss of earnings (on the basis that you are expected to try and find another job as soon as reasonably possible).

 

CD claims are quite difficult to win by their nature so it would be worth trying to get a professional on board if that is the route you want to go down. No win-no fee employment lawyers would often take 35%-40% of an award which cannot be recovered from the other side, but I think it would be worth it for a case like it which would be difficult to win as a litigant in person.

[Anon212]

Many thanks everyone. All i want to do is get on with my life and be able to support my family. I knew these people where like this, pretty much from day one, but learned to co-exist with them and keep my head down for such a long time, but when they started taking good people out of the equation by lying i couldn't just sit idly by. Such is my nature to right wrongs. All i did was put a cross hair on my chest, but i am probably the only one in the department that can look in the mirror and say you are a good person and you did the right thing. Doesn't pay the bills, but everything happens for a reason. I am seeing a lawyer tomorrow and i will see if he feels i have a case. I'll let you know how it goes.