Without prejudice/ Settlement agreements/ Constructive dismissal

grumpfish

Hello,

The explanation of my situation is very lengthy and complicated so I'll start from the most recent events and work backwards if needs be.

I have a grievance hearing next week. My employers have been acting atrociously, subjecting me to unfair and unwarranted disciplinary action a few weeks after my baby was born. They gave me five days inclusive of weekend to try to arrange care for my small children in order to attend and to prepare my defence against the allegation. They refused to rearrange the meeting as they'd arranged the travel of their panel and so I had no option but to submit a written response to the allegation. I prepared a response to the allegation made in the invitation letter and they responded that they had not accused me of this (despite a very clear sentence stating 'evidence has been found to suggest that you...). They issued me with a written warning. I appealed and the appeal took 21 days from submission to be heard. Again, I was not afforded the opportunity to attend in person as the manager hearing the appeal is based in another country. He turned my appeal down, although he agreed with me in part and some of his reasons for not upholding it were based on factually incorrect descriptions of procedures. I submitted a grievance which encompasses the treatment I received whilst pregnant and then on maternity leave, the disciplinary and the totally flawed appeal several weeks ago, along with over 20 supporting documents. Days before the hearing, I received an email from the HR consultant hearing my grievance stating that she refuses to review any documents that I submitted to support my defence to the disciplinary action and the appeal as the decision was final, even though much of that evidence supports my complaint of the lack of support despite repeated pleas to management. Also, I have evidence that the appeal was based on incorrect information, so why can I not submit a grievance about an appeal that is totally flawed? She has chosen what she is willing to discuss in the grievance and listed it in the letter. All the points she is willing to discuss are easier to offer tenuous explanations for, whereas those she will not look at would prove very difficult for her to offer an adequate explanation to.

Is it usual for employers to dictate to an employee what their grievance hearing will be based on? I am not appealing the decision of the appeal, I want them to investigate the intentionally misleading invitation letter and the incorrect information that the appeal decision was based on. I believe that the action was brought unfairly and was predetermined and she is refusing to look at all the evidence that supports this.

I have also discovered, having requested the notes taken during the disciplinary meeting I was not allowed to attend in person, that no official meeting took place therefore no minutes were taken and it seems the panel did not travel to where the meeting was to be held. These travel arrangements were the very excuse given for the inability to rearrange the meeting in order for me to attend in person.

I've seen an employment solicitor who said I have a strong case for constructive dismissal. She offered to write two letters in order to enter into a settlement agreement but the fees she quoted are beyond my means. She did say that fees are often recouped in part but as unfair as the treatment I have received is, i'm worried that my bullish employers would just try to drag this out in the hope that they can shake me off, as they know the impact that all of this is having on my health. How would I go about entering into a without prejudice discussion with my employers? I really worry about going down the constructive dismissal route but if the solicitor thinks I have a strong case then is the stress worth it? Would I have more chance of a quick resolution if my solicitor entered into a dialogue with my employers or am I better off doing it myself?

Ultimately, all I want is to leave the company with a good reference as I've worked so hard it made me ill and remained loyal throughout. there have never been any issues with my performance until I went on mat leave and although a first written warning may not appear to be that severe, it is totally unjust and will hamper my career in that field of work.

Any advice would be very welcome. I hope I have been clear, I am trying to juggle two very small children and writing this at the same time so it may not be as comprehensive as it should be.

Thanks

dylan0103

You need to go to citizens advice - they offer free support. You have several points in which you can use, the fact that they never held the hearing and no notes where taken is horrendous. Also, your hearing should have been held in your place of work unless they offered travling expenses for you to go

grumpfish

Thanks for the reply. I have an appointment with CAB next Friday. I only wish I had arranged one sooner! I spoke to someone at ACAS regarding the lack of notes/ meeting but wasn't particularly helpful and said that as i'd refused to attend there was no need for them to conduct a hearing as such. But I don't think he was really listening as i'd explained that I hadn't refused but that I was not physically able to, as much as I really wanted to. Everyone else I spoke to at acas have been great, it's just one guy who likes a bit of an argument I think. spoken to him a few times and I always get sucked in to it!

ohreally

dylan0103 wrote: »

You need to go to citizens advice - they offer free support.

This is outwith the scope of CA, they generally don't have the resources or expertise to pick up a case such as this.

Grumpfish - where are you in terms of exiting the company at the moment? Are you due to return from leave anytime soon, do you feel the relationship has irretrievably broken down?


Btw, the employer only has to provide "adequate" notice, 5 days would likely comply.

You inform the appeal took 21 days - what are the company timescales?

Southend1

I presume you are not a union member? If not the only way forward would be for you to engage your own solicitor or try to resolve this yourself. Don't forget timescales for lodging tribunal claims are very strict and you may already be out of time (check NOW!). Also there are now tribunal fees, which if you don't belong to a union you will have to pay yourself.

grumpfish

Thanks for your reply.

My ML ends in Feb, although I would've been returning sooner. The relationship has definitely irretrievably broken down, there's absolutely no trust left.

Yes, they've followed their procedure in that respect as they quote the 5 days notice, however the issue I have is that they state they will adjourn a hearing on one occasion provided that the reasons for doing so are adequate enough. I'm sure caring for two small children, one an exclusively breastfed 7 week old, would constitute a good enough reason but not for them it seems! I guess it is up to them what they deem good enough reason.

Their procedure states that the appeal hearing would be conducted within 14 days from receipt of the appeal. They originally gave me a date within that 14 day period and offered a telephone meeting but my children would be too much of a distraction so I agreed to submit a very detailed written response again and advised that I could answer questions posed via email if necessary. When the date of the appeal passed, I contacted him and he informed me that on the proposed date he had taken annual leave and hadn't looked at my appeal yet. At this point, it had passed the 14 day period. He finally sent his response dated 21 days after notification of appeal.

grumpfish

Hi Southend1,

Thanks. No, i'm not a union member and there is no recognised union at my workplace.

I still have time to submit a claim for constructive dismissal. There are elements of discrimination involved but although I have some, I don't feel I have strong evidence of this and I think a claim for this would have to be submitted very soon. All I want really is for them to remove that warning so I can move on from them, I don't want all the stress and expense of a tribunal. I'm not sure whether or not it's worth trying to appeal to their good nature, but I don't think they have one!

Southend1

grumpfish wrote: »

Hi Southend1,

Thanks. No, i'm not a union member and there is no recognised union at my workplace.

I still have time to submit a claim for constructive dismissal. There are elements of discrimination involved but although I have some, I don't feel I have strong evidence of this and I think a claim for this would have to be submitted very soon. All I want really is for them to remove that warning so I can move on from them, I don't want all the stress and expense of a tribunal. I'm not sure whether or not it's worth trying to appeal to their good nature, but I don't think they have one!

From what you have said, it doesn't sound like appealing to their good nature will help much!

If you're not prepared to go to tribunal I guess all you can really do is try to negotiate an agreement for a good reference. You will probably need a solicitor to help with this. Also once a tribunal claim is out of time there won't really be any incentive for the employer to engage with you on this so you would need to move quickly.

For your next job, bear in mind you can still join a union even if one isn't recognised by your employer and get individual representation and legal support

grumpfish

Thanks, I'm totally ignorant when it comes to unions, I wish I'd known and I definitely will join one in the future!

I think I'll have to act no later than next Friday really if i'm going to get what I want. The solicitor said it's best to prompt them to offer some sort of settlement but I have no idea how I go about doing so. How would I word a without prejudice type letter? Or is it best to have a without prejudice chat next week following the grievance hearing? I'd like to do it myself without having to involve the solicitor yet in order to avoid the cost involved but maybe it's best to just get her to do it, i'm not sure I could word anything strongly enough to get the result i'm after!

Southend1

I would say that unless you are confident you know what to do and how to go about it then it's best to get a solicitor to act for you

pmlindyloo

ohreally wrote: »

This is outwith the scope of CAB, they generally don't have the resources or expertise to pick up a case such as this.

Grumpfish - where are you in terms of exiting the company at the moment? Are you due to return from leave anytime soon, do you feel the relationship has irretrievably broken down?


Btw, the employer only has to provide "adequate" notice, 5 days would likely comply.

You inform the appeal took 21 days - what are the company timescales?

If your CAB has an employment Specialist then they may be able to assist you. Google CAB and have a look for the ones in your area that have a specialist.

I know you haven't given us all the information about the situation and you say that you do not have enough evidence for discrimination (whilst you were pregnant/on maternity leave), but did the solicitor confirm this?

The reason that I am mentioning this is because Legal Aid is still available for cases of discrimination. Not sure if you would be eligible but............

Although CAB cannot give you legal advice they should be able to help with other aspects - reaching some sort of agreement with your employer (if that is what you want)

The other thing that they should do is signpost you to someone who can help (if it is beyond their expertise)