burchell v bhs case

zzzLazyDaisy

CFC wrote: »

Tony, the problem is that it is not about right and wrong.

It is about whether the employer has acted reasonably in the circumstances. Now, I don't know enough about the circumstances to say whether it was reasonable or not; but before you go spending any money ensure you are absolutely clear about the difference between 'reasonable' and 'beyond reasonable doubt' in a civil as opposed to a criminal case.

If you have exhausted the internal appeal procedures, then you may be able to go to an employment tribunal. This will cost you nothing generally. There are time limits, so you will be best looking at it online and seeing if you fall within the timelimits.

Hi Tony, CFC has given you very good advice.

If you have exhausted your employer's internal appeals procedure, and you still wish to take this further, then you can make a claim to an Employment Tribunal. You can do this on-line from the Tribunal Website (they were having problems with their on-line forms yesterday, but hopefully that should be resolved soon). You can also lodge a paper claim and you can pick-up a claim form from Job Centre Plus, or ask the ET office to post one out to you.

As CFC says, there are strict time limits for lodging a claim. Start with the dismissal date (that is the date you were notified of the decision to dismiss, not the date of any future appeal). Count three calenday months forward and one day back. that is your absolute last day for lodging the claim, and it is YOUR responsibility to ensure the ET get the claim by that date.

However, as others have said, the test that the tribunal must apply is 'does the employer honestly and reasonably believe that the employee carried out the act complained of, based on a fair investigation'. The employer does not have to prove beyond reasonable doubt that the employee did what he is accused of doing. The employer just has to come to an honest and reasonable belief based on the facts.

To put this in perspective - suppose an employee 'A' is accused of stealing money from the employer. £20 is missing from the till, and only the this employee had access to that till on that particular day. Also another employee 'B' says that she saw A buy a sandwich and pay for it with a £20 note that same afternoon, after only that morning telling B she was skint and couldn't afford to buy any lunch.

The employer follows all proper procedures to the letter, A explains that she found the £20 note on the floor while in town on her lunch break, but the employer doesn't believe her. There is no CCTV or direct evidence proving that A stole the money out of the till. But the manager tells the tribunal, under oath, that he carefully considered all the facts and honestly believed that A had stolen the money.

In that situation, provided the ET accepted that the manager was an honest and reliable witness, A's prospects of success at an ET would be very poor indeed.

I know it may seem unfair to you, but that is a long standing and accepted test of whether the employer has acted reasonably, which has been laid down by the courts. Your chances of persuading a tribunal to ignore or over-rule this test are neglible, simply because a tribunal is legally bound to follow the precedents set by the higher courts.

I hope this helps to put things in perspective, and wish you luck in whatever you decide to do.

Daisy

tonycree

thanks, lazydaisy...
I am at the tribunal stage.
They, the co. obviously are adament of their viewpoint.
I can only work on what I believe to be right.
It was a vindictive dismissal.
I am hoping the few anomalies I will raise to the tribunal
will over-ride their bloody, so-called reasonableness.

londondulwich

The way to expose nastiness when it is dressed up as correct procedure, is to apply reasonableness.

If the investigation involved taking statements, what reliable evidence was available over a month later?

People's recollections are less clear as time passes.

If the investigation involved two possible suspects, one of whom was never identified, was it reasonable to wait five weeks before speaking to the other one?

The recorded evidence would have been the first port of call in any investigation. Unless the evidence needed specialist analysis, it is worth asking why it took so long for you to be approached, given the risk you posed.

If the incident involved criminal activity would it have been reasonable to involve the police?

Failure to involve the police, circumventing the possibility of an impartial and professional investigation, is suspicious. (Particularly if the damage could have been paid for by the insurers).

Given the implications of the accusation, (dismissal on the grounds of gross misconduct), was it reasonable not to inform the suspect of the charge beforehand?

Under the statutory standard dismissal procedure the employer must provide the employee with a written statement of grounds for action and inform the employee of the basis for the grounds before holding a meeting to discuss it.

etc...

The need for the employer to be aware of any mitigating or extenuating circumstances is often emphasised. It will be a very rare case where an employer can reasonably take the view that there could be no explanation or mitigation which would cause him to alter his decision to dismiss.

Were you able to provide a explanation for where you were during the incident or why you would have no reason to behave in the way you were accused?

zzzLazyDaisy

tonycree wrote: »

thousands of pounds are at stake here
mainly my costs....

T.

At the risk of stating the obvious - even if you win, your former employer will not be ordered to pay your costs.

tonycree

a lot of useful info. there...
today I am in the process of scanning/printing docs.
the ones that need to be exchanged by the parties...
also having to make calculations for my wage losses.
I have gone from £24k to £6/hr...
bit of a comedown but this site helps no end.
so bloody time consuming...
they have their minions to do this for them.
guess they hope I'm gonna go away...
digging in more and more now
with my collected info.
Have heard the manager behind it all
who has not shown his face
is 'crapping' himself!?
thanks y'all

tonycree

I gave the disciplinary hearing manager a whole load of mitigating circumstances.
For one, I told him the truth - that it was a pure accident -
We were under pressure because our computer system had gone down and we were rushing to put the contingency plan into place...
I gave him a pile of unanswered emails and notes from my 2 immediate managers concerning my dept. which on a daily basis put added pressure on me .
I gave him a list of other potentially gross misconduct scenarios
such as theft, tomfoolery, wilful damage etc. that I had reported to a certain manager (guess who?) and which had gone uninvestigated, therefore unpunished.
there was plenty for him to help him with his decision
(but the decision had already been made by someone else - no proof tho')
but 'on a balance of probability' , I did what they say I did.
AGAIN THANKS.

zzzLazyDaisy

When is the tribunal hearing?