Employment Tribunal ... what are my chances ?

greendollar

Hi all ,

I was dismissed from my place of employment on Aug 2008 , for gross misconduct on a safety related charge.
I had a clean record , a written warning some years earlier in my employment was spent .
I had my claim for unfair dismissal accepted by the Employment Tribunal Service in Nov 2008 and am still waiting for a date , the firm have so far managed , at the last minute , to postpone the hearing 3 times citing a different excuse everytime.
The union have taken on my claim and think I have a good chance of success.

My claim is that I have been treated far more harshly than fellow colleagues , 2 who have agreed to be witnesses . They received verbal/written warnings (one more than once) for the exact same offence.

One colleague is still employed by the same company , the other was dismissed some 6 months after me .

They have informed the union that they will call the sacked witnesses credibility into question because of his poor safety record (he had 25yrs experience)


My only concern was that at my appeal I partially admitted to the offence , I had denied it throughout the investigation and disciplinary hearing , as the manager holding the appeal implied that he could not help unless I held my hands up.

I understand that the E/T lean heavily towards the employer , does anyone think that my chances are good as after so long and repeated threats of costs I'm seriously thinking of calling the whole thing off.

jazzyman01

You have come this far, stick with it. It is clear that the company are putting in barriers in the hope that you will give up.

If you can show that you were treated differently then you have a good chance. If you can show that they were already making changes before the Hearing, again you have a good chance.

If you can show that the same offence was treated more leniently and, more importantly, after they received more lenient punishment there was no communication to staff saying that anyone caught in the future would be dealt with more seriously, you have a good chance.

Tribunals are interested in the process. I do not think that they are leaning towards employers. In fact some employers would say some ET's lean towards the employee.

Good luck

mikey72

The safety related part could be problematic, depending on what it is.
Did you work for Network Rail, or as a contractor?

lulu650

Hi greendollar, if the union have taken on your case they must feel you stand a good chance. I don't understand this threat of costs. The union should be supplying a solicitor and paying all costs. Have you checked that?

greendollar

I have spoken to the union and although they have taken on the case for free they have warned that I am liable for the other sides costs should I lose , they did point out that it would be highly unlikely that costs ,even if I lost , would be awarded to the employer in my case . However the threat is still there.
The problem is that I worked in a safety critical enviroment so any offence is deemed gross misconduct ... saying that managers were quite happy and even encouraged employees to bend the rules but then use those same rules to discipline any employee who stepped out of line .

Uncertain

greendollar wrote: »

I have spoken to the union and although they have taken on the case for free they have warned that I am liable for the other sides costs should I lose , they did point out that it would be highly unlikely that costs ,even if I lost , would be awarded to the employer in my case . However the threat is still there.

Mikey , I was working for the largest freight company on the network . The problem is that I worked in a safety critical enviroment so any offence is deemed gross misconduct ... saying that managers were quite happy and even encouraged employees to bend the rules to ensure that trains departed on time but then use those same rules to discipline any employee who stepped out of line .

The chances of costs being awarded against an individual at an ET are low, but it can happen.

Basically, you need to do far more than just lose. To award costs the ET would have to take the view that your case was so weak or malicious that it should never have been brought.

For what it is worth I think it is disgraceful that solicitors seem to be able to get away with making what they must realise are groundless threats in many cases.

dickydonkin

Uncertain is correct, it will be unlikely you will be liable for costs should your claim be unsuccessful.

Furthermore, as many unions are cash strapped, they will not take on a case where the burden of proof (balance of probability) is less than 51%, of course being aware that a tribunal may think otherwise.

This case seems to have 'hit the buffers' (sorry for the pun bearing in mind your former employment) as your claim was submitted to the tribunal in November 2008.

What is interesting me is that there seemed to be the same repetitive breaches of safety and I am wondering why this occurred on more than one occasion - not just by you.

From a safety perspective and from experience, where regular breaches of the same safety rule occurs usually indicates an underlying problem.

This could be poor training, inappropriate policies and operating procedures, no or unsuitable risk assessments, no defined safe system of work and insufficient monitoring.

One, some or all of the above may be attributable to safety breaches or indeed accidents.

Was the guy who was dismissed 6 months after you sacked for the same safety breach? If so, that company seems to have a serious safety management problem.

So OK, you admitted the safety breach - that may or may not be your fault.

Were the safety breaches investigated (I would certainly want to know why 3 people allegedly breached safety - moreso when it was the same 'offence') and I wonder if the work/working environment and conditions were attributable to the breaches - ie an unrealistic timescale for completion, insufficient manpower etc. etc.

Many people believe when someone has an accident at work that it is their own fault when they have seemingly contributed to that accident, however, again from experience, when an investigation has taken place, there will always be an underlying cause - usually some or all of the causes indicated earlier.

I am assuming your safety breach did not cause an accident but even in near miss incidents or where safety breaches occur without injuries, there should be an investigation to stop it happening again - yes, disciplinary can be involved, but usually it is the company's safety management that is at fault.

I suspect that the company would not desire their safety inadequacies read out at a tribunal and if they are contractors, moreso - therefore I would suspect a payout before the hearing may be forthcoming. They do seem reluctant to attend the hearing.

All of this may or may not be relevant to your claim, but I would be looking at ways of mitigating the admission of the alleged safety breach.

Perhaps you or your solicitor can counter claim the accusations of the witnesses poor safety record as any individuals safety record is a key indicator of the company's safety record - which based on your post seems sadly lacking. They could score an own goal in that respect. Discrediting witnesses on poor safety performance may be a bad tactic.

Incidentally, it might be beneficial just to browse through the HSE's enforcement website just to check that your former company have had no prosecutions, prohibition or enforcement notices in the past. This would also be another damning indictment of their safety record if you could provide other safety breaches and discredit THEIR safety record.

It seems to me that you were a victim and scapegoat of poor Health & Safety Management within the company you were working for - but of course they are not going to sack themselves are they?

If the companies safety management is lacking (which seems to be) then that may assist you.

Of course, all of the above will be irrelevant as the company may not have carried out your dismissal as per required procedures.

Whatever happens I hope you let everyone know the outcome.

Good Luck!

dickydonkin

Try this link for the Office of Rail Regulation who now deals with the enforcement of the industry.
http://www.rail-reg.gov.uk/server/show/ConWebDoc.7822

There may be some indications of safety breaches by your company either in the improvement notice, prohibition notice or prosecution links on the page.

If your former company has had 'previous' it may help your cause.

I notice that network Rail have numerous entries and I suspect you were contracted to them, however, if your former company is a general contractor, there may be offences on the HSE enforcement page.

greendollar

Thanks for the reply , must have been having a bad day and after reading through their response to my claim I've come to the conclusion I've got them by the short and curlys.
1.They deny I've been treated differently than other employees.

I have 2 coming as witnesses to say otherwise.


I'm pretty sure they haven't even checked the dates. But I'm sure the E/T will see what I'm complaining about .

Oh well , I'll just have to wait it out .

jazzyman01

Look at it this way, they have done everything to try and put you off, postpose three times and threaten with costs. If they really felt that they had a case they could win, would they not just get on with it?

greendollar

Hi everyone,

Ok ,so I now have a new date, just had a letter from the company with the usual threats ,my claim being vexatious/frivolous with no prospect of succeeding and of course costs if I continue to proceed .

They also want to know details of all jobs I have applied for since my dismissal in Aug 2008 , what dates and the names of the companies ?

As I have been claiming JSA (some part-time work declared ) and that I have met DWP criteria to be able to claim JSA , would that be enough for the E/T to show that my efforts to find work have been sufficient .
I really don't think its any of my old firms business who I've been applying too , plus a lot of the info they want has been done on-line (I have no records ) or many firms don't even reply ?

A bit stuck as how to reply to them .

Any help would be appreciated.