Help!!!! unfairly dismissed

Kbubbles

The employer is not looking at the phone at all so if we take that out of the question where do I stand? They are going on statements/hearsay nothing else. They won speak to people that can prove my innocence and also the managers and employees involved have been talking about it on the sales floor.

Leading to me receiving phone calls from different people asking what's going on, when no one should have known.

lulu650

Hi, you've been given advice for an appeal. You can approach people willing to provide statements for you as part of the appeal. However, you still haven't said what proof they will be providing in support of you.

Where you stand is that you are dismissed and your pay has stopped. You will continue to be dismissed unless it's overturned at appeal. You have the right to take it forward to an ET which you need to do within 3 months. They will decide whether it's unfair dismissal or not.

Uncertain has given you very good advice. Although I don't know of any union who would provide advice for a pre-existing case.

jobbingmusician

So - your defence is that if they examine the original properties of the photo, this will prove that it was not taken by your phone.

How did the person who sent you the photo send it to you? Unless you have a super smartphone, it wouldn't have been sent by simply tapping phones together. Was it sent by email, facebook, other means? Phones don't exist in a vacuum, and there should be an electronic trail.

The fact that the employer, or others involved in your disciplinary, may know about it is not relevant to your case, by the way.......

Uncertain

lulu650 wrote: »

Hi, you've been given advice for an appeal. You can approach people willing to provide statements for you as part of the appeal. However, you still haven't said what proof they will be providing in support of you.

Where you stand is that you are dismissed and your pay has stopped. You will continue to be dismissed unless it's overturned at appeal. You have the right to take it forward to an ET which you need to do within 3 months. They will decide whether it's unfair dismissal or not.

Uncertain has given you very good advice. Although I don't know of any union who would provide advice for a pre-existing case.

As of the moment you are no longer an employee so nothing can stop you approaching former colleagues or anybody else who can provide evidence to help you. Be warned however that people who are still working there tend to clam up and forget things rather than go against their employer's line. You may have to be a little devious to get some evidence from them........

You also need to write to the firm and formally request anything you can think of that might help. Make a specific list but also ask for anything else that could be relevant. This is important.

To be honest few appeals are upheld but what is very important is that your present the employer with all the evidence you can so that you later have a chance of arguing that the dismissal was unfair.

jj_5

jj_5Surely your employer can prove you've sent it.

If I send an email via Iphone my name comes up as the sender. If I send a text my name comes up as the sender.

Tell them to show you the phone with the message sent, if you haven't done it they cant show you it.. Problem solved?


Let me clarify my point. Your phone is damaged. The phone(s) who've recieved the text from you (allegedly) are not damaged. So ask the employer to present these phones as evidence that you have committed the offence.

Why they haven't done this already is beyond me as it saves them hassle if you have actually done it.

Mischa8

OP. three things

1. If you haven't done this already see citizens advice bureau.

2. If you're in or near big town see if solicitor there will give free consultation for initial meeting (some do this).

3. Have you seen HR dept re length of work there (when started). Also to bring up bullying.

I think you need more than this forums advice here with your situation. I work with employment sols so cld ask questions but not take on as proper cas because then we'd charge.

Good luck. Sounds like victimisation as well as bad luck on yr part.

SarEl

It appears to me that the OP has made a fundamental error in their approach to the disciplinary hearing. They have expected the employer to conduct their defence. In the first post the OP says that people who could prove that they didn't send the photo were not approached to give statements. This is the job of the OP or their representative - not the job of the employer!

The employer was provided with a series of statements which said that the OP was responsible for taking and distributing the photo. In the absence of any evidence to the contrary - which it was the employees responsibility to provide - then they formed a reasonable belief that the allegations were true based on the evidence in front of them. That is the classic definition of a fair dismissal.

The OP's only available option here is to appeal and to provide them with that evidence to the contrary. An employment tribunal will not consider evidence that only comes to light after the event unless there was no possible way in which that evidence could not have been known about at the time - and even then new evidence must conform to very strict rules. Otherwise their jurisdiction is to hear the case based on the same facts that the employer did.

It would appear that the reason why no evidence to prove the innocence of the OP was provided was because they did not find any evidence to provide - even though it would appear that such evidence might have existed, but they did not go looking for it. The only chance to now introduce that evidence is at an employers appeal. Otherwise the chances of it ever being accepted by a tribunal are negligible.

The OP may not have realised that it was their responsibility to present evidence in their defence, but the law assumes that people are responsible adults and know what they must do - what you don't know is not an argument in law.

The key to this is not the employer proving their case - they have done so and have evidence upon which they can rely to make a decision that says the OP sent these messages. The key is the OP proving that they didn't - either by obtaining phone records to prove they could not have done so, or by those people who received the messages stating that they did not recieve the message from the OP.

Mischa8

Uncertain wrote: »

As of the moment you are no longer an employee so nothing can stop you approaching former colleagues or anybody else who can provide evidence to help you. Be warned however that people who are still working there tend to clam up and forget things rather than go against their employer's line. You may have to be a little devious to get some evidence from them........

You also need to write to the firm and formally request anything you can think of that might help. Make a specific list but also ask for anything else that could be relevant. This is important.

To be honest few appeals are upheld but what is very important is that your present the employer with all the evidence you can so that you later have a chance of arguing that the dismissal was unfair.

can OP not in this case discuss this with HR or write to them as you say?! Seems OP has been hung out to dry and dismissed without not following procedure or with not full grounds for gross misconduct?

Mischa8

Does not really add up here. Surely if they're investigating this case eg who sent photo to whom and how then surely you'd be suspended pending investigation and not dismissed.

Can you not check employee hand book and arrange meeting with HR on that basis?

And sending photo to competitor is that really gross misconduct and how as no proof?

Uncertain

KBubbles......

I suggest your read post No 28 very carefully and do exactly what SarEl suggest.

As you are new here you won't know but SarEl is a highly experienced barrister specialising in employment law.