Employment Tribunal - help needed

Helpfulone

This gets really confusing.

I thought you had to appeal the decision before you could go to an employment tribunal - but someone else may know better.

If he was due a 1 year additional leave - what would his losses be?

I also think that you CAN have a disciplinary when the employee is off sick - if not someone could be off sick for years and never attend.

I also believe you can send written statements in your defence (did you do this) or send someone else to represent you (if you didn't do either of these - why?)

I can't see what you could win in this case as regards loss of earnings etc.

nodiscount

I just wanted to add that missing so many disciplinary meetings (even though he was ill) does not really encourage an employer to be lenient. Quite the opposite as employers are sick and tired (excuse pun) of accused employees delaying meetings by getting sick notes. Perhaps that's why they kept on the female worker? Maybe she complied with the procedure, held her hands up and they dealt with it.
Did he do what they accuse him of?

Takeaway_Addict

Southend1 wrote: »

Check your OP carefully because you have named the organisation!

To be fair, even without the name even Jess could guess who it is

Helpfulone

nodiscount wrote: »

I just wanted to add that missing so many disciplinary meetings (even though he was ill) does not really encourage an employer to be lenient. Quite the opposite as employers are sick and tired (excuse pun) of accused employees delaying meetings by getting sick notes. Perhaps that's why they kept on the female worker? Maybe she complied with the procedure, held her hands up and they dealt with it.
Did he do what they accuse him of?

I kinda agree with this. It does make me wonder if someone isn't fit enough to attend a disciplinary - how they can get fit enough to go to an employment tribunal.

Pricivius

A few points-

Disciplinary - if an employee is not fit to attend, a company can go ahead in their absence after a couple of failed attempts. The employee should be given the opportunity to put their case in writing. As Helpfulone suggests, companies cannot be expected to wait forever as the business must go on. Did they warn your OH they would be going ahead in his absence and did he have the opportunity to put his side in writing?

Appeal - it is not necessary to appeal before submitting a claim, but any award an be reduced by up to 25% as the Tribunal may find your OH has failed to follow the ACAS code.

APL - whilst it appears the employer failed to acknowledge his notice (it is not an application), did your OH provide the correct documents with his notice? It appears as though the employer has not tried to refuse the APL so I struggling to see a link between the APL and the gross misconduct allegation...

GM - what is your OH's position on the GM allegation? Is he saying this was fabricated? I'm also not getting your point regarding the other employee accused of GM - she admitted it promptly so the employer can treat this differently. Presumably your OH denies it so the employer must investigate fully etc.

As for your questions:
1. As rep, you can also be a witness but it's unclear what you are a witness to that your OH cannot explain. Surely he's in the best position? What can you add? Also, you won't be able to ask yourself any supplementary questions, although the Judge should do this for you.
2. Presuming the employer has not previously discriminated against your OH in relation to his sex and he was given his OPL without difficulty, this is an isolated incident without apparent vitriol or abuse. I would suggest middle of bottom band at best, but check out the case law.
3. The Tribunal should list directions, including disclosure. This is where you swap lists of documents, or documents themselves.

On the info you have given, my view would be that you are going to struggle to make out sex discrimination or unlawful dismissal. The employer appear to have followed processes (albeit omitting to acknowledge the APL notice) but I cannot see a link between the APL and the dismissal. The GM is key here - if your argument is that this is totally fabricated, you need to be able to convince the Tribunal of this.

Finally, please do not underestimate the effort, time and stress involved in bringing a claim. If your OH has already struggled with his mental health, does he really need to be cross-examined by a barrister under oath? I'm not suggesting you shouldn't go ahead if you have received legal advice that suggests you are in a strong position, but please do not think this will be easy. Also, check your household insurance for legal cover.

mazza1985

Hahaha! Cant believe I named them, that will teach me trying to do 2 things at once, OP edited, thank you!

The allegation made is that my partner failed to declare 6 undelivered junk mail leaflets (door 2 door items) and hid a further 20. The evidence that they based this on is 2 fold - 1 is a witness statement that alleges the offence took place on a bank holiday, which clearly is not true the office was shut that day, and 2 the same witness who shares part of a walk/round with my partner (my partner did approximately 10% of that walk/round) stated that the leaflets found shoved in the bottom of their shared frame belonged to my partner and not him.

He did not communicate with the employer on his behalf at all, other than to tell them he was unfit to do so, and that I would be communicating on his behalf. They did offer him the chance to respond in writing but we took advice from CAB and were informed it was not in our interests to. The final decision was made to sack him based on the "complexities of the written communication he had sent, showing that he was not unfit to attend" despite already having written to that manager telling them that I was constructing the letters!

I am a witness as I undertook all the written communication and had several telephone conversations with my partners manager, including 1 where he admitted trying to get the occu health report changed, which led to an ATOS "health professional" being sacked.

He didn't give notice for OPL, he gave notice for APL, which was ignored and only actioned when we threatened action through HMRC. They never gave written confirmation within 8 weeks of the notice going in with the correct documentation. He also submitted the career break application at the same time so they knew what his intentions are.

Luckily now this isn't hanging over him and with him taking antidepressants and having paid for CBT privately, his condition has improved thankfully.

Finally my partner tells me he did not commit the offence. I have absolutely no doubt that he is telling me the truth based on the above.

Pricivius

Interesting "advice" from CAB! The employer gave your OH the opportunity to respond in writing and he chose not to do so.

As for the OccH Report, there is nothing untoward in an employer questioning a report. In my experience, OccH and GPs will confirm that an employee is unfit for work, but do not draw the distinction between that and unfit to attend a meeting. Employers can offer all manner of reasonable adjustments - neutral venue, regular breaks, free choice of representative etc... - to enable an employee who is not fit for work to be able to attend a meeting. At its worst, it sounds like the employer was trying to change the Report, but putting another spin on its the were trying to confirm that there was absolutely nothing they could do to support your OH to attend the meeting so that he could put his case in person - it all sounds pretty reasonable now, eh?It is really important to play devil's advocate and think about how the employer is going to spin this.

So your OH was not dismissed for the allegation of GM but for pretending to be unfit for meetings? That doesn't sound right to me. The employer may have included that point in the letter but I would be very surprised if that is stated as the reason for dismissal.

I understand he gave notice for APL - I was asking whether he received OPL without difficulty to clarify whether the employer has a history of sex discrimination. This would affect the vento band.

Their failure to respond to the APL notice is not great, but I don't see what your loss/claim is on this point as they allowed him to take it, albeit after a reminder and you threatening them with HMRC. I'm not denying the employer knew what his intentions were, but did they at any point refuse to allow him either the APL or the career break? Does your claim hinge on them ignoring the notice and request? It's hard to see that a Tribunal will deduce conspiracy when !!!!-up looks more likely...

As for the Unfair dismissal, the employer need only find on the balance of probability that your OH committed GM. Without him putting his case in writing, they probably managed that without huge difficulty. The ET must then look at that decision and decide if it was within the band of reasonable responses. In the absence of evidence from your OH, it probably was. How are you getting from here to sex discrimination? The employer had a valid reason to dismiss and your OH submitted nothing in his defence - it's quite a leap to suggest ignoring notices was behind all of this...

mazza1985

No he did not have difficulty taking OPL - Although they did make him take it from the day I went into hospital, not the day the baby was born!

They advised him not to respond because they ignored a grievance he had put in around the altered report/date allegation took place/manager laughing at him when he attended a fact finding interview. He attended the fact finding interview then had a nervous break down, but did not attend any disciplinary hearing. Sorry I am really tired today. How could he have committed GM on a bank holiday Monday? His office was shut!

Helpfulone

mazza1985 wrote: »

No he did not have difficulty taking OPL - Although they did make him take it from the day I went into hospital, not the day the baby was born!

They advised him not to respond because they ignored a grievance he had put in around the altered report/date allegation took place/manager laughing at him when he attended a fact finding interview. He attended the fact finding interview then had a nervous break down, but did not attend any disciplinary hearing. Sorry I am really tired today. How could he have committed GM on a bank holiday Monday? His office was shut!

But if this is the case WHY didn't your husband defend it??

I just can't get my head round it.

Funky_Bold_Ribena

OP. Please don't represent your partner, you clearly have issues with clear and precise communication. He needs someone who knows how to structure a statement and argument in order to represent him.