Employment Tribunal matter

avfc78

I have brought an action against my ex employer who sacked me back in September 2008. I submitted this to the tribunal in December 2008 and have exchanged letters since then substantiating the particulars of my claim. The action was for unpaid wages, unfair dismissal and (sexual orientation) discrimination. I was employed for 11 months and sacked for supposed poor performance. The reality is that i was working for a small company and had disclosed my sexuality one month before my dismissal. I have plenty of evidence that demonstrates my performance was actually very good and therefore refutes the stated reasons given. My ex employer has lied throughout these proceedings and not followed statutory procedures or there own employee handbook at all. The handbook states what should happen when their are capability issues and this has not been followed. I was also not given a verbal ow written warning at all. I believe they thought they were being *clever* by doing what they did before my employment had reached one year (which is normally required to make a tribunal claim) As I am making a claim for discrimination, my understanding is that the year is not required - I also believe from web browsing that if the employer does not follow the three stage statutory disciplinary procedure, then the dismissal automatically becomes "unfair" and also means that a minimum one year is not required...

Anyway, I have received notification from the tribunal that they are warning me my claim may be struck out (not allowed) as my minimum years service had not been reached. I have made lengthy and detailed submissions already and felt confident and able to represent myself based on the facts and documents i have (even though i am not legally trained)

I am sure what i have done to date is right but would hate to come unstuck, so would welcome advice, help, opinons etc very much please.

Nile

Make an appointment to see the Employment Law expert at your local Citizens Advice Bureau.

http://www.citizensadvice.org.uk/index/getadvice.htm#searchbox

Horace

The employment tribunal is right in saying that your claim may be disallowed because you need to have been in employment for 12 months. Your employer, however unreasonable it sounds, can get rid of you for whatever reason within the first 12 months of your employment.

With regard to statutory disciplinary procedures - sometimes it is not necessary to follow all the stages i.e. verbal warning, first written warning and final warning if the conduct of the employee is deemed as gross misconduct in which case the employer can move immediately to the dismissal option.

It might also pay you in future not to divulge your sexual orientation because it really is not any business of your employer nor your colleagues to know what you do in your private life. Unfortunately, there are too many people out there who are not happy in their own skin that they look on those who are 'different' with fear and revulsion and this can cause a great deal of upset for the person who has been identified as being 'different'.

LittleVoice

Horace wrote: »

The employment tribunal is right in saying that your claim may be disallowed because you need to have been in employment for 12 months.

Surely the reason why 11 months' service should be sufficient is if the claim is on the grounds of discrimination.

Is that clear in the papers submitted or is it lost in the due process argument?

avfc78

Thanks Horace..... there was a company event to which partners were invited..... I did not disclose my sexuality for no apparent reason, and I would have liked to have thought it did not have the affect that it did one month after this soire... I intend to go to the cab or a legal centre where i might get free advice - I am 100% certain though that where an accusation is being made about discrimination, the 12 monmths is not required?

avfc78

LittleVoice wrote: »

Surely the reason why 11 months' service should be sufficient is if the claim is on the grounds of discrimination.

Is that clear in the papers submitted or is it lost in the due process argument?

In my full 'particulars of claim' - I made it quitre clear that discrimination ws the basis of my claim. I have to confess that i submitted a 20 plus page document that set out my arguament along with many pieces of info including emails, the handbook, my contract etc - and maybe this was not read fully henct the warning of the claim being struck out....

Horace

LittleVoice wrote: »

Surely the reason why 11 months' service should be sufficient is if the claim is on the grounds of discrimination.

Is that clear in the papers submitted or is it lost in the due process argument?

Unfortunately not LittleVoice which is why the Employment Tribunal have said that the case may be disallowed. Sorry, I have a lot of experience with Tribunals from my time as a union bod.:rolleyes:

avfc78

Horace, I respect your experience, but is it not the case that you can go to the tribunal for a discrimination claim after ANY period of service in a company - even just a month? that was my understanding.....

Horace

You would need to follow procedures ie. the grievance procedure and when that has been exhausted then you take the case to a tribunal, of if you had experienced the discrimination in the first month of employment you would have to make a formal grievance. You then take a case to the tribunal no longer than 3 months after the last incident of harassment/discrimination.

SomeBozo

Hello

You can be sacked and not given a reason upto 12 months service.

However, you cannot sack someone inside those 12 months for discrimination reasons (gender, age, colour of skin), sexual orientation is covered in this.

So you are well within your rights to push for a tribunal if you have evidence you have been discriminated against because your sexual orientation.

However I feel the discrimination angle is the only one you have. You can't prove you good or bad performance because its not your standards they will test this against.

For example if you were a salesperson and you regularly sold more than the other salespeople, you can still be sacked for poor performance because the measure and volume of sales is just one of the criteria.

Please only proceed if you have concrete evidence of the discrimination, its heartache, expensive and morally draining otherwise in your circumstances.

Bozo

avfc78

The reason given by the company were performance related (and i was a salesman that exceeded my peers, ironically enough) I have incidents that are noted of homophobic comments being made and tolerated generally and also a change in attitude towards me (no longer wanting to proceed with an in principley agreed business trip) and then sacking me within one month of the disclosure. Also, at the company event, one of the two company directors did not speak at all to my partner although they did speak with, and appeared to be the perfect host to other staff and their partners. From reading online, I have suffered direct discrimination as per the 2003 regulations regarding sexual orientation discrimination. I think teh sexual discrimination angle is the best way of being able to proceed with the claim - with the unfair dismissal and unpaid wages as a bolt on to this?