Advice about dismissal - please

Burny_Sweetwater_Glasgow

Well I wish you both well for today and that you do indeed get some well earned rest. This is a very strenuous time but as you have seen there are many who are willing to give you their support. Your OH is very lucky to have had the level of support you have been giving to him and I hope that the end result, whatever that may be and when ever that is will reward you both for the injustice that you have both suffered. These are trying times for many people but that does not mean that employers should be allowed to get away with treating people in the way your OH has been treated but you are definitely not alone judging by other postings on the forum. One day when all this over you will have the opportunity to support some other poor soul through the benefit of your own knowledge and experience.
Get some sleep if you can so that you are fresh for your meeting and I hope you get the result that you so deserve.

Debt_Free_Chick

Amber07 wrote: »

Well, here is the letter draft - going to run it by the solicitor before we send it though. Thanks to Floss who provided the bulk of it

Monday 2nd March, 2009

Dear Mr D********,

I am writing to appeal against the decision to dismiss me on the grounds of gross misconduct on the basis that:

-The Company failed to supply sufficient information prior to the last meeting.
-The Company gave unreasonable notice by phone of the meeting date on Friday 20th Feb at 3pm, for a meeting at 10am Tuesday 24th Feb.
-That issues were brought up during the meeting by the Company which were not relevant to their previous notification of disciplinary action, and that I had no prior warning of.
-I felt as though my genuine explanations for most of the incidents were simply ignored or glossed over.
-I feel as though the decision to dismiss me was made even before any investigation was carried out, due to comments made at my initial 'investigation meeting'.

As part of this appeal I am requesting that copies of all evidence discovered by the Company in their investigation be made available to me within the next 7 days, thank you.

Yours sincerely



Amber07's DH

If this does go to Tribunal, then the way in which OH handles the appeal process could be crucial and could go in his favour. For this reason I would be inclined to be more specific - and leave out anything for which is there is no evidence.

I would want to send a stronger more precise letter, but would prefer to have some more information, so I can be more specific myself

As I understand it, your OH had a "routine review" meeting with his manager on 4 February. No indication of any disciplinary issues were raised and indeed, no mention was made of anything that was later included in the allegations ....?

He was suspended with full pay, verbally, on 14 February. Were specific allegations made at this time? Or was he told that he would be contacted about the allegations? If allegations were made, could you list them please?

He received a letter on 19 February - could you post exactly what the letter states please? In particular

Did it list specific allegations e.g. An allegation has been made that you <did something> on <specific date>

This is very important! The employer must outline the conduct/behaviour that lead them to consider disciplinary action/dismissal.

Did the letter state what the outcome might be i.e. did it state that the purpose of the meeting (to be arranged) was to consider disciplinary action and/or dismissal?

Did the letter actually use the words "Gross Misconduct"?

The reason for asking this is that your previous post (#21) refers to the letter "detailing his suspension" so it's not clear (to me) whether this satisfies Stage 1 of the (statutory) disciplinary procedure.

The purpose of Stage 1 is to make it clear to the employee what they are being accused of, so they have advance notice of the "agenda" for the meeting.

He then received a phone call in the afternoon of 20 February (?) telling him that the meeting would be held on Tuesday 24 February at roughly 10am i.e. about 24 hours notice, looking at working days only. Was it nearer 24 or 36 hours?

You had said that he spoke to a colleague on 17 February to get a statement that would refute one of the allegations - just curious, as the letter didn't seem to arrive until 19 February - how did he know about that allegation? And was that allegation included in the letter?

At the meeting, additional allegations were made and these had not been set out in the previous letter. Were these completely new allegations or additional examples to elaborate on the original allegations?

You say that there were statements from 3 employees about OH's alleged behaviour towards them. When did these incidents occur?

He then received a letter stating he was being dismissed, for Gross Misconduct. Did the letter confirm the behaviour that amounted to GM? And were the allegations of that behaviour covered in the meeting? And covered in the letter?

Finally, did the process bear any resemblance to the one set out in the published Disciplinary Procedure that the company has?

****************************************

As things stand, the company is making a right hash of this. It's not yet clear whether they've complied with Stage 1 of the statutory disciplinary procedure. This requires them to state the allegations that were leading the company to consider taking action AND - very importantly - that the allegations could lead to dismissal. There was a case in the Employment Appeal Tribunal confirming this recently - Zimmer v Brezan. Mr Brezan had already won in Tribunal and the company appealed, claiming that they did not have to state there was a risk of dismissal in the stage 1 letter. They lost!!!! Again!!!! So I hope you can understand why I'm being so pedantic with the detail It really is to help you and OH to build the strongest possible case.

As things stand at the moment, it looks very likely that your OH would win a claim of unfair dismissal, in Tribunal - failure to follow the statutory disciplinary procedures is automatically an unfair dismissal. But we all really need to be clear on the detail of what's happended so far.

olias

I can't say I've read everything in this thread, but have got the gist of it.

I have been to a tribunal before and believe me you need every shred of evidence if it goes that far (my bundle was about 2" thick!)

Basically I'm echoing what others have said about specifics ie dates, times, evidence by way of letters/emails/other documents etc etc.

If things go to tribunal, it's basically like a court case and you need evidence, evidence, evidence!

A thorough and detailed letter at this stage will let the employer know you are serious and not a pushover and may well worry them into making a deal.

One other thing, don't worry or be intimidated if the employer has access to solicitors etc. Mine had a barrister representing them at my tribunal and I represented myself and won!:D

Olias

Debt_Free_Chick

olias wrote: »

A thorough and detailed letter at this stage will let the employer know you are serious and not a pushover and may well worry them into making a deal.

That's exactly my plan.

I think the letter should "worry" the employer by demonstrating that Amber's OH knows his rights; and that that knowledge strongly hints that the company has "got it wrong". If the company has any sense, they will consult their lawyers, which will be a good thing, as it seems that the company is in breach of the statutory disciplinary procedure - and that they will therefore lose at Tribunal. The result should be an offer of reinstatement. This is the ideal point to negotiate a compromise agreement - with financial compensation - as it seems that the company's actions has resulted in a breakdown of the relationship of mutual trust, between employee and employer.

One other thing, don't worry or be intimidated if the employer has access to solicitors etc. Mine had a barrister representing them at my tribunal and I represented myself and won!:D

Olias

Yup - big guns are there to make you believe that you cannot win.

See Zimmer vs Brezan

The ex-employee was not intimated and won - in Tribunal and then subsequently in the Appeal Tribunal.

I really think that this appeal letter is crucial and hope that Amber will post a reply to my previous message.

Amber07

Debt_Free_Chick wrote: »

I really think that this appeal letter is crucial and hope that Amber will post a reply to my previous message.

Hi, and thanks - I am just writing up a reply just now - there's a lot of detail, I'm trying to get it all right.

-BA-

Have followed this thread for a good while now but not been able to contribute much I'm afraid. What I would say to reiterate some of the other postsis that you now need to view this tribunal from a legal standpoint. In any court case, circumstantial evidence will rarely be considered as contributory. Whatever you put in the letter needs to be factual and backed up with evidence. The circumstantial can only really be used as supporting evidence to show the broader picture of the steps taken to force you OH out.

Amber07

Hi, Debt Freee Chick - I appreciate you taking the time to write all that.

I am taking on board your advice about the appeal letter and trying to redraft it - I have to have it in today's post.

I also have to be careful what I say, as certain aspects of DH's work will give away his line of work, and as you can imagine, I am worried that someone from the company may recognise the issue.

I will answer as best I can

Debt_Free_Chick wrote: »

I would want to send a stronger more precise letter, but would prefer to have some more information, so I can be more specific myself

As I understand it, your OH had a "routine review" meeting with his manager on 4 February. No indication of any disciplinary issues were raised and indeed, no mention was made of anything that was later included in the allegations ....?

Only thing mentioned was that the place wasn't ready for a stock check. This was brought up at the interview, and 2 days previous to the checvk DH has phoned the boss to let him know that they were snowed under with work and there was a chance the place wouldn't be ready. The boss said he would come out anyway and 'see how things were' in the end only one thing wasn't done out of 5. DH wasn't aware it was a massive problem at the time.

He was suspended with full pay, verbally, on 14 February. Were specific allegations made at this time? Or was he told that he would be contacted about the allegations? If allegations were made, could you list them please?

Some allegations were made at the time verbally: A till discrepancy (which I explained in an earlier post) accusation of bullying employees, unprepared for stock check, accused of accepting a 'cash payment' for work done (we have a written statement from the customer refuting this completely) saying he has had too many holidays (I keep records of everything, he was due 1 more week due to working days off) and overselling products.

He received a letter on 19 February - could you post exactly what the letter states please? In particular

Did it list specific allegations e.g. An allegation has been made that you <did something> on <specific date>

"My decision to suspend you was based on the fact that a number of incidents have been brought to my attention which, if substantiated, may constitute Gross Misconduct under the terms of the Company’s Disciplinary and Grievance procedures, and may be contrary to your Terms and Conditions of Employment.

Your failure to have your centre prepared to the required standard for a visit by senior management, (this he found out the afternoon before, on his day off, and his under manager made sure the stuff was done, the owner even TOLD him he was doing a great job!)and your subsequent failure to have your centre ready for a pre-arranged stock check.

In addition, I have instructed a full investigation into your conduct in relation to ethical selling, customer complaints, and your behaviour and attitude towards your centre people.
Thus is not an exclusive list of the matters between us."

No specific dates given on the letter.


This is very important! The employer must outline the conduct/behaviour that lead them to consider disciplinary action/dismissal.

Did the letter state what the outcome might be i.e. did it state that the purpose of the meeting (to be arranged) was to consider disciplinary action and/or dismissal?

"As I explained to you, you have been suspended without prejudice to your pay pending the completion of the investigation, and I will contact you shortly to advise you of the time and place of your disciplinary hearing.

You are entitled to be represented at this hearing by either a work colleague or a representative of a Trades Union of which you are a member."

Did the letter actually use the words "Gross Misconduct"?

'may constitute gross misconduct'

The reason for asking this is that your previous post (#21) refers to the letter "detailing his suspension" so it's not clear (to me) whether this satisfies Stage 1 of the (statutory) disciplinary procedure.

I have no idea either, it's all so complicated:o

The purpose of Stage 1 is to make it clear to the employee what they are being accused of, so they have advance notice of the "agenda" for the meeting.

He then received a phone call in the afternoon of 20 February (?) telling him that the meeting would be held on Tuesday 24 February at roughly 10am i.e. about 24 hours notice, looking at working days only. Was it nearer 24 or 36 hours?

3pm Friday until 10am Tues - I make that about a day and a half

You had said that he spoke to a colleague on 17 February to get a statement that would refute one of the allegations - just curious, as the letter didn't seem to arrive until 19 February - how did he know about that allegation? And was that allegation included in the letter?

That was the allegation he was bullying some of the guys - he spoke to one of them on the Monday night, and the guy didn't even know why DH had been suspended, he even sounded quite shocked at the fact. Next thing we know there at the hearing there are statements from 3 of the youngest employees there.
During the ajournment, the colleage who was with DH commented 'what a lot of rubbish, I don't believe that' and he worked there for 3 months.
The statement to refute allegations was with regards to taking a 'backhander'

Another point - one of the employees whom a statement was taken from got a lift to and from work every day with my DH. Surely if he was scared he would have got the bus home??

At the meeting, additional allegations were made and these had not been set out in the previous letter. Were these completely new allegations or additional examples to elaborate on the original allegations?

Some were examples, I will need to go through all the notes for the details.

You say that there were statements from 3 employees about OH's alleged behaviour towards them. When did these incidents occur?

No specific date - just genera 'I felt bullied and intimitated' comments from all three. One said he was in tears. DH did shout at him once- because the guy made a mistake which if DH hadn't caught him, could have been fatal for someone.

He then received a letter stating he was being dismissed, for Gross Misconduct. Did the letter confirm the behaviour that amounted to GM? And were the allegations of that behaviour covered in the meeting? And covered in the letter?

'Responsible for the bullying and intimidation of junior members of staff' In addition, that you misappropriated a cash sum' (This was a £20 tip that was left - Dh gave the worker £10 and put the other £10 in a kitty for the works night out, they are saying he kept it)


Finally, did the process bear any resemblance to the one set out in the published Disciplinary Procedure that the company has?

For gross misc, it says the employee will be suspended without pay pending an investigation. (Although he believes the investigation isn't fair). I can't figure out whether the procedure of verbal warning/written warning/final warning etc refers to gross misc or just other matters

****************************************

So I hope you can understand why I'm being so pedantic with the detail It really is to help you and OH to build the strongest possible case.
I appreciate that

As things stand at the moment, it looks very likely that your OH would win a claim of unfair dismissal, in Tribunal - failure to follow the statutory disciplinary procedures is automatically an unfair dismissal. But we all really need to be clear on the detail of what's happended so far.

I am honestly lost now There is so much, and everything is done in a roundabout way.

I hope I have provided clearer info?

Amber07

I have a timeline written up if that simplifies things?

Thursday 5th February, 12pm
Present - Mr C, Mr G, DH
‘1 to 1’ meeting to discuss progress of the centre. Nothing major brought up, just the issue about the cleanliness of the centre.
Saturday 14th February, 12.30pm
Present - Mr G, Mr S, DH
Mr G asked if I was returning to centre as he needed to speak to me. No warning about investigation meeting that was about to take place.
Saturday 14th February, 2pm
Present - Mr G, DH (in staff canteen)
Allegations listed, was told I could resign or be suspended pending investigation. Told him I would not resign.
Tuesday, 17th February, 12.52pm
Phone call from Mr G asking if I had received my letter. I hadn’t so he said they would send out another copy. Also told me not to speak to anyone from the company. How am I supposed to gather evidence for my defence?
Wednesday 18th February, 6pm
Went to my old address to see if the letter had turned up. It hadn’t.
Thursday 19th February
Received official suspension letter.
Friday 20th February, 3pm
Phone call from Mr. G checking I had the letter and to inform me of my hearing on Tuesday 24th at 10am.. Asked if I still wanted to go ahead, or if I wanted to ’fall on my sword’ If I did, Mr S may involve an outside investigation.
No reasonable length of time to prepare or seek advice.
Tuesday 24th February 10am-12pm
Disciplinary hearing, dismissed. Incidences brought up which I had no prior notice of.
My witness was informed he had to remain impartial and couldn’t ask questions or comment.
Also, part of my reason for misconduct included an incident that wasn’t included in the letter of suspension. ('misappropriated cash sum')
I believe the young employees have been coerced into providing ammunition against me, and that they were ‘helped out’ with their statements.

Debt_Free_Chick

Here's my suggestion.

Address the letter exactly to the person who sent the dismissal letter e.g. Mr A B Smith, General Manager etc .... I have assumed that the first letter, confirming the suspension and the allegations was written by someone else, Mr G in your previous post.

Dear Mr Smith

I refer to your letter of xx February and wish to lodge an appeal regarding my dismissal on the grounds of Gross Misconduct.

My reasons for appeal are as follows

1. The Company failed to give notice and details of specific allegations to be investigated at the disciplinary hearing. Mr G's letter of xx February failed to make specific allegations of alleged incidents of ethical selling, customer complaints and attitude and behaviour to centre staff. Whilst the letter stated that the investigation would include these matters, no examples or allegations of specific incidents were made.
2. The Company failed to give reasonable notice of the disciplinary hearing. I was informed that the disciplinary hearing would take place on 24 February at 10am by telephone at approximately 3pm on Friday 20 February. This gave me approximately 36 working hours notice which was unreasonable and provided insufficient time for me to fully prepare for the meeting.
3. The Company failed to give notice of allegations that were raised at the disciplinary hearing, with the result that certain allegations were made for the first time at the meeting held on 24 February, without prior notice. They were not set out in Mr G's letter of xx February and I had no opportunity to prepare for discussion of those matters. In particular, no allegation of misappropriation of cash was made before the meeting.
4. Allegations of bullying and intimidation of colleagues were made at the meeting. Again, these were not included in Mr G's letter of xx February and no allegations of this nature had been made in the past. In particular, these matters were not raised at the time that the alleged incidents took place and not raised during my regular review meetings, the last of which took place as recently as 5 February with Mr G, Mr C and Mr DH.
5. I was denied the opportunity to gather evidence to support my denial of certain allegations as colleagues were informed that they were not to communicate with me.
6. The allegations of bullying and intimidation have not been fully proven as no specific incidents have been revealed. The allegation of misappropriation of cash has been fully explained, is unproven and therefore does not amount to Gross Misconduct.

In order to allow to fully prepare for an appeal hearing, I request that you provide specific details of each allegation that has resulted in your decision to dismiss me. I would also request that you give me five working days notice of the appeal hearing and allow me to consult with colleagues in order to provide evidence that will refute the allegations. I shall also need a copy of the Disciplinary Procedure, Grievance Procedure and the Company's policy on bullying and harrassment.

Yours sincerely

....

Send the letter recorded delivery.

Debt_Free_Chick

OK, my other observations.

In my view, the only matter that amount to Gross Misconduct is the alleged "misappropriation" of cash - even that would be borderline, depending on what they mean by "misappropriation". Theft would be gross misconduct - but do they mean theft? If they consider that what OH actually did - give half the tip to the worker the remainder to the kitty - was wrong, then that wouldn't be gross misconduct, unless the company has a policy which states so.

Bullying and harrassment/intimidation of staff would not be gross misconduct either - hence, he should get a copy of the disciplinary procedure and the company's policy on bullying and harrassment. I doubt that his contract contains full details of the entire disciplinary process in a way that complies with the regulations and the Company should have a full, detailed procedure set out.

The company should have given precise details of the bullying incidents i.e. when they took place and what it was he is accused of having done. Bullying and harrassment is not an appropriate accusation for one-off incidents - it needs to be repetitive behavious sustained over a period of time and is usually dealt informally first - as we can all be guilty of one-off incidents of inconsiderate communication. If the informal chat doesn't clear the matter up, it would then be a case of warnings etc in line with the disciplinary procedure.

Your OH will need to do some preparation for the appeal hearing and we can help with that. Most importantly, he MUST stick to the allegations and not counter them with accusations of other matters against the company e.g. do not accuse them of making their decision before the disciplinary hearing, even though that seems likely. An accusation of that nature simply cannot be proven and it's obvious to anyone reading the facts that this is what probably happened - even a Tribunal is likely to draw that conclusion

It's difficult to comment further until the Company respond. If they do not present details of the alleged bullying incidents e.g. they rely on disclosure of vague details at the meeting only, then that will work strongly in OH's favour. We already have a very, very strong case as the misappropriation of cash issue was not disclosed in the letter of 24 February.

The disciplinary hearing is meant to investigate certain allegations and allow OH to present evidence to clear himself, so the stage 1 letter should set out the allegations. How could he present evidence without knowing what allegations were to be made?

OH needs to behave as though he wants the dismissal rescinded. Even though this would result in him getting his job back, a compromise agreement can then be raised. However, I doubt the company are going to rescind the dismissal, unless they consult their lawyers with the full facts - and even then, I think it's likely that any lawyer would suggest that a compromise agreement is the only way to get rid of OH without the risk of Tribunal proceedings.

Otherwise, it will be off to Tribunal on a simple case of unfair dismissal due to failure to follow the statutory dismissal procedure.

Keep us posted.