unfair dismissal (DPA) in a messy grievance- a long one

Luvly.cuppa.T

Hi all,
This is a continuation from my last post, of 'my boss has cut my wages without my permission.'

Basically I brought a big grievance up that I knew would get very messy and indeed it did. I was suspended on full pay due to being 'uncomfortable at work', although they don't uphold that victimisation has occured against me....

Through my grievance I received 2 counter grievances against me (boss and partner) based on my own grievance.

From these, I was called to a disciplinary meeting to which I was instantly dismissed on the spot in a truly unfair manner, of contravening the data protection act!

The situ is I took a terms and condition booklet home with me to read- boss said they were freely available for us to do that. When I was at home I found an ofference letter tucked inside with details of pay, position, bank details, address, I think NI number and the persons name.I decided to take a copy of it as it was evidence for an equal pay claim (he same position , but more pay than I) as I believed that the boss would have managed to lie/fabricate this somehow, (Oh yes!) By the way I never received my own contract, which I also brought up in my grievance- again not upheld....

I returned the booklet and original copy as found, after showing the Assitant manager,(who has access to these details anyway) and looked inside other books to find more copies of contracts of other people who no longer work there.
I needed to wait for other evidence of my pay being cut, through my wage slip to go ahead with my grievance.

At my g meeting I handed over the copy and was told immediately that I could have broken the DPA by making a copy, and that I could get a slapped wrist for it. I maintained that surely I hadn't as the contracts where freely available, but that was never considered nor any action taken on that, even though I brought this up in my g appeal aswell. In addition I was told to take a copy of the copy to send to them, even though I insisted that they have my one, as I had no need for it.

Next a g letter comes in from the guy whose contract it is, have a g meeting and all seems fine. I then get called up for disciplinary and got sacked, on contravening the DPA and nothing else!

The company have said that I obtained the info, copied it, retained the info, and shown to a third party. However I studied the DPA to be solid on it and section 55 allows you this if you are upholding a law- in this case the equal pay act. I also gave the manager who held the meeting a copy, who replied that he was not a solicitor!

I have recieved advice from the IOC and a solicitor, who both say I have not contravened the DPA, as the info was left freely available in the first place.

Boy, I am mad. My service has been clean, and I am known as a hard worker to boot by all. I brought this issue inadvertantly to the company's attention who did nothing by way of action on the manager who did contravene the act on many levels.
One thing though, is that I woud have been with the company for a year on May 15th..... and they did rush this baby through, with lack of paper work I needed to build the case. They did send it, and then gave 48hours notice for the rescheduled hearing, which of course I had to attend , otherwise they would have made judgement without me. Although it seems very clear that they already had no matter what I had to say.

I would love all of your advice on this matter, as I am awash with it all at the mo and very stressed with it!

Many thanks

Savvy_Sue

All I can say is ACAS ... but maybe someone's said that already in your other post ...

lynzpower

I second Acas, or going to a employment lawyer.

thier case is full of holes, patently illegal, and there should be some compo in the post for you from a moneysaving angle.

hex2

Sorry for the essay, but this is a bad one for a brief answer and you need to take some action quickly - ie the appeal.


Have you appealed against their decision within the time frame they set? Very important that you give them an opportunity to put things right or any eventual award will be reduced.

I am assuming that they are claiming an act of gross misconduct on your part? so instant dismissal no notice? How much notice was in the normal contract? If no contract then statute is a week, would that have given you sufficient service?

Have they followed statutory dismissal procedure, eg 24 hours written notice, right to a companion, right to delay for up to five working days? Written reasons for dismissal, etc? Is what you have allegedly done listed as a gross misconduct offence in their disc procedures? Where does it say that you couldn't take the book home to study?

I would be appealing aginst the decision, regardless of if they have told you that you have a right to appeal or not, stating in your letter that the penalty is inappropriate even if you had done what they say you have. Also mention victimisation, harassment, failure to follow statutory and own procedures, if appropriate. Do they have a HR department, if so copy it to them. If this was done by one of my managers I would either re-instate you or put a compromise agreement in place at appeal. I would never defend this one at tribunal as I hate losing..... Remember that an appeal is not a re-hearing, it should only cover the areas in your letter so make sure you are very clear on the contents as they should be the only points that will be discussed.

Request in writing a copy of your terms and conditions of employment. Failure to provide this is an automatic fine at tribunal. Pay the fee (£10) to see a copy of your file. If they have any sense they will destroy anything damaging, but not everyone has this much sense!

Assuming that your dismissal is upheld I would be getting a tribunal application from filled in with the help of someone who knows what they are doing. To be on the safe side I would go for unfair dismissal and the equal pay claim, and the failure to provide written terms and conditions, partly because there is no qualifying period for the equal pay claim or the t and c's one. Your argument is that if a fair process had been followed then you would have had sufficient service to claim for unfair dismissal. What you did was not gross misconduct therefore your dismissal was unfair. If you can get failure to follow statutory procedures in then it ups the award quite a bit. The other two bits get you into the tribunal where you can argue the unfair dismissal one.

If you do write it on your own be really factual, try and avoid emotional statements. So on X date this happened. I then raised a (written) grev (notice, told of right to companion or not), meeting was held on this day, this happened, I was suspsended on full pay due to counter claim from whoever, then was given notice of disc meeting to take place on (in writing or not, how much notice, given copy of any evidence witness statements 24 hours in advance, told of right to companion, held by the person I complained about etc), At this meeting (which lasted X minutes) X happened and I was dismissed without notice on the grounds of gross misconduct for X - use the specific words they used in their letter in quotation marks. Told of right to appeal or not? Decision confirmed in wiritng or not? Provided with copy of written notes or not? Asked for written terms and condtions - received or not. I then appealed citing the following grounds. This meeting was held/not held on x date, I was given written notice or not, told of my right to a companion or not, and had Y outcome. I also formally requested a written copy of my terms and conditions which have still not been received. As I have still not received my terms and conditions I do not know what notice period I would normally have been entitled to, but others in my role had to give/receive X weeks. Even if I had been given statutory notice then I would have had sufficient notice to claim. Paid until, plus/minus X days holiday pay. (If not paid would this mean you had been paid less than working time regs 4 weeks equiv pro rata, in whgich case you want to add non payment of wages for the missing holiday pay). I believe that this was trumped up charge in response to my grev, and that it was rushed through to prevent me from having sufficient service to make a claim.

I am a HR Manager with a depressing amount of dimissal/redudancy experience so I do know what I am on about, but this is very general advice. Do go and see a specialist like a no win no fee lawyer, as they make their money from spotting the gaps - they also take 50% of your winnings.

I hope this helps you. Best of luck with finding something else. Sounds like they were pretty poor to work for anyway. Don't let this eat away at you, and don't think it will earn you a fortune at tribunal. Depends what you earned really and how long it takes you to find another job. We usually work on nine months pay as an average cost, but that includes long service people who tend to get a lot more. Failure to follow statutory procedures is quite pricey so get clued up on those for both the disc and the grev, and spot anything they have missed. You are also bound to follow the statutory procedures, so make sure you have as well, or any award may be reduced by a % for your contributory behaviour.

Luvly.cuppa.T

Many thanks for your replies.

I have certainly taken all that you say on board hex2, and thanks for taking the time to do that. I am admitedly very tired at the mo, so I will go through your post more thoroughly tomorrow morning. There certainly seems to be some good points.

To add I am a mere part-timer who dropped my hours to one shift a week (I am a mother of 3 and a full time student, plus voluntary stuff), so money isn't going to come rolling in from tribunal! But I won't take this shambles lying down.

The company did follow statutory guidlines with timing ,rep being allowed, appeal, etc. The only thing was the initial letter of 'inviting' me to a disciplinary meeting saying they had enclosed the info that would be presented, but hadn't. So the first meeting was cancelled by me. When I received the info I was also given the meeting date which was 48hours notice.
All they put was that I had contravened the DPA. No specifics. No one else has been pulled up about this either.

Again the outcome letter was that I contravened the DPA , no particulars of the law put, just what I wrote above about obtaining, photocopying etc. There is no mention of company policy. to boot they add they that took my work record into account.... I think that my suspension was miscontrued as part of this disciplinary (about the DPA) rather than due to victimisation. (The guy who conducted the meeting didn't have all the facts, not even the copy of the contract that was in question.)

Unfortunately I can't get legal help as there is not enough money for solicitors to be interested, but they did tell me to fight all the way as I have a great case.

Money.......ay. It's not always about the money I tell ya!

lynzpower

google for commnity law centres in your area- they should be able to offer legal help without having to pay for it!

CFC

Hex has given wise advice. Follow it.

Luvly.cuppa.T

Thanks all.

I also have a problem with the equal pay act. I was turned down on both my grievance and appeal in that they (company) believe that there was no equal pay issue.

Now I was made supervisor a few months after I started my job and given a payrise with it. There is nothing in writing to say this though, just as I wasn't given writen particulars when I started.
My comparator was also a supervisor (I learnt from the contract that was in the t & c book), so I believed that being on the same job title there was a case. However, I am not put down as supervisor , but as retail staff on the computer system. I have argued this case, but they have not taken this on, rather they have given me a new title of 'shift runner', and that there are varying levels of responsibility and therefore pay.

I asked what exatly does my comparator do that has more responibility than I to constitute a higher hourly rate than I. They were vague and told me that they could not tell me this as they would be breaking the DPA in doing so.

In addition the assistant manager was receiving less money than my (and her) comparator, but they have not upheld her grievance about the EPA neither!

If I take this to tribrunal how would this be taken? As I say there is no writen proof that I was a supervisor. There was a witness to see me being asked and accepting of the position, but he has lied in all grievances (3 others in addition to mine) to back up the manager.... (strange because he had real issues with her, and was the first to moan). It was said in a meeting though, about my position and people know of my position as a supervisor, is that enough?

I am sending in an equal pay questionaire soon too, as I was basically told at my first grievance meeting that it was just more paperwork and is only required when all route of appeal is exhausted. So I didn't bother at that point as I had faith in the company!!

Oh, with regards to notice, my employment was terminated on the 4th May and given a weeks stat notice plus pay in lieu (and holidays, 5 1/2 days worth.)
That brings me to the 11th May, which leaves me 4 blooming days short of a year!
Would it be possible to add my holidays to this time, effectively bringing me to the 16/17th of may???? Oh I hope it does....

I have just found this...

'Dismissal for asserting a statutory employment right'

"Employees will be unfairly dismissed if their employer dismisses them (or selects them for redundancy when others in similar circumstances are not selected) because they have sought to assert one of their statutory employment protection rights by either bringing proceedings against the employer to enforce the right or by alleging in some other way that the employer has infringed the right.

To benefit from this protection, employees do not necessarily have to have specified the right they sought to assert, so long as they made it reasonably clear to the employer what that right was.

Provided that they have acted in good faith, employees are protected regardless of whether or not they did in fact qualify for the right they sought to assert and regardless of whether or not that right had in fact been infringed."


this is on : http://www.dti.gov.uk/employment/employment-legislation/employment-guidance/page31082.html

With regards to my taking a copy of my comparator's contract for the purposes of providing evidence for the equal pay act, and from that receiving dismissal- would this stand as unfair dismissal?
Anyone have any experience of this particular issue?

Luvly.cuppa.T

Hello all,
here is an update of the situation:

I received a letter this week saying that their decision to 'sack' me was overturned! They said that they did not have any evidence to say how I obtained the contract in question, although I had the assistant manager witness finding the other ones.... and that they could not take one persons word against another- which was my bosses against mine. Aparantly she denied leaving the contracts out. This enrages me as it has been therefore suggested that I have gone out of my way to get the contract, via the office, or computer.

Still that is done. I also get a clean reference and pay up until my appeal hearing, which equates to 4 weeks. However they are not paying any compensation, nor is there any mention of my position as superviser and nothing on the equal pay issue.

I think that I will write a letter to them asking for compensation for defamation of character, and warn them that I will take the equal pay to tribunal, with lack of contract too.

Can I also claim for contructive dismissal? I have actually got a years service with them now, thanks to my holidays owed!

ohreally

Luvly.cuppa.T wrote: »

I think that I will write a letter to them asking for compensation for defamation of character, and warn them that I will take the equal pay to tribunal, with lack of contract too.

On what grounds are you considering prosecuting a claim for equal pay...is it a gender issue?

Luvly.cuppa.T

ohreally wrote: »

On what grounds are you considering prosecuting a claim for equal pay...is it a gender issue?

yes. I have brought this through my grievance and appeal, alongside the assistant manager who was also on less then our comparator (m). At all time they said that equal pay was all good. However,my position as supervisor has not been acknowledged by the company as the boss didn't have it on the current pay system- they . made out that I was retail staff- with a shift runner position.

In my favour though I have witnesses to say that I was superviser and that the system apparantly failed in that it reduced my wages... (it didn't, there were 2 witnesses to see that the boss accused both assistant managers in upping my wage without authorisation, although she was the one to do this when she made me supervisor, 8 months prior) so I can use the same excuse as she- the system messed up when the new one went in and wiped my record of being supervisor.
Honestly , my boss was a wicked so and so and would do anything to stay out of trouble. In fact she resigned with short notice that was unusually accpeted.....

Ohh they have my equal questionnaire pay , which is needed for the tribunal. They still haven't replied.... they have 8 weeks to reply , and over 3weeks has passed. They acknowledged the receipt of it. If they reply evasively or don't reply the court look upon it more favourably in my direction, or so i am told.