Unfair Dismissal - DIY Employment Tribunal

g0liath

Starlet wrote: »

I dont know if this is possible, but have you thought about getting character references from a wide variety of people outside of work, to show that these allegations contradict your personal character?

Hi thanks, No, Tribunals deal in facts relevant to the case and not character witnesses.
The 'victim' left the firm. The firm have only the HR manager, the Department manager, and appeal Director as witnesses.
The bundle shows what they say in their witness statements and what the interviews show are not the same and have been twisted to what was actually said.

There were allegations of the alleged behaviour taking place in front of people and this is shown not to be so. Other conversations were not deemed offensive by others and state that the victim was laughing about things and not offended by others talking about Ramadan. But as I discussed things that this person asked questions about, in an environment of friendship with the ‘victim’, and admitted to the context being different, they chose not to believe me. All they have are my word of what happened over a 'Sustained' period which is not demonstrated independently, against theirs. They are using the dignity at work policy. They ambushed me with racial harassment as the reason for dismissal in their letter but it was never presented to me until the actual dismissal letter. The policy is ‘catch all’ but there is a part that says “...It will become harassment if the conduct continues after the recipient has made it clear, by words or conduct, that such behaviour is unacceptable to him or her” and this is not discussed. I knew nothing of the allegations until I was suspended and indeed had no idea who it was until they told me in the first investigation interview.
I told the truth and because the 'victim' has taken parts of conversations that did take place and used these to an alternate context, they say I admitted to conversations in the way he purports which is not the case.
The tests that have to be demonstrated by this company, and bear in mind the actual act is not questioned as to whether it did or did not happen by the tribunal and they will not substitute their view even if it was blatantly unfair, are:
Did the employer genuinely believe I was guilty of misconduct?
Did the employer have reasonable grounds to think I was guilty?
Would my dismissal be considered a reasonable response to the misconduct?
Was there a proper investigation into what happened?

They have to show why they believed it and so use balance of probability over absolute proof to say this. Which is correct although I did not know this at the time.

The second is; can they show reasonable grounds. This is where they have to justify what those grounds are and on the back of a reasonable investigation. This is where they are going to fail. I knew this before I started as this was the principal to my challenge.
They can say that they thought it was racist and use that as an excuse so this also wouldn’t be difficult for them to justify.

This is why they think they were entitled to dispose of me relatively quickly.

I am showing that this has happened before to me and I was not sacked, and for far worse allegations. Because this was used as a reason, I can show that the person who tried this 2 years ago (The Victims manager) had brought in racism when I was about to return to work for performance allegations brought against me by this same manager. This manager had had me transferred to their section and immediately put me on a performance improvement plan then saying I was OK. They then suspended me after obtaining the technical information I was brought in for to get a specific project up and running. I fought this and showed I was being victimised for my role and benefits as I was earning more than this manager which was the spark for this vendetta in the first place.
This manager was put onto an improvement plan. I knew this as the person told me after we reconciled about 18 month later. But the interview that the investigation had with this particular manager was not what I thought my relationship was, and there were obvious resentments still held against me. The appeal interview (which I did not see)was very nasty and said I was making statements that “sounded like they were from a BNP leaflet” I couldn’t challeng this as it was not shown to me. However, 2 years ago I was always given the chance to comment on further interview evidence and it is written down in the bundle.
I also did not see any further investigation statements taken after my disciplinary hearing by other individuals and these were used in the dismissal letter. Some content was in my favour and would have helped me. I had no opportunity to challenge these and there were un-checked facts that were pointed out in the appeal but were only looked into after the appeal. There were important facts that were conveniently missed off that contradict the ‘Victim’ who says in their own words that “we were alone” when the previously used racist allegation from the last disciplinary (from him manager) was cited. Also I belittled him in front of others was not shown to be so and facts were contradictory. Finally, he has added greater and greater descriptions of things that were supposed to have been said by me in each of the 4 statements he gives of which 2 I was never shown (1 was produced just before the appeal and 1 after the upheld appeal). In fact the HR person question one of these versions saying that’s not what you said last time but it was not followed up.

They were only looking for anything that was detrimental and ignoring anything that was helping me with my case.

My advice to anyone accused of racism that is innocent is not to admit to anything as this is the ‘wild card’ that an employer can use to oust anyone they like. It goes against my principals, but in this case, telling the truth did not help me one bit. Hoverer, because my version is consistent and the ‘victims’ is not, it will be my redemption.

I am doing this on principal and the employer is standing their ground as it cannot be seen to be weak or wrong. I am confident that my version will prevail. If not, then I gave it my best shot and there is nothing I can do about it

g0liath

AndyPK wrote: »

Good luck with your case.

I would appreciate if you did publish the details/guide/tips as I am going through this myself.

I have outlined my details and advise below if that helps

g0liath

sensibleadvice wrote: »

They have a fair point. You've already said the company has evidence of gentle conversations that no one was troubled by at the time. Who's perception is gentle? Presumably not the victim's or employer's. How do you know the victim hasn't been bottling up all these 'gentle' conversations and have reached a point where they've had enough? All this on the balance of probability, a balance that your solicitor didn't feel they could back.

I don’t know what the ‘victim’ wanted out of this process. The fact that they were leaving anyway (proven in the investigation) indicates malice intent. It could be they were put up to it but I could never show this. Or a discrimination attempt for their own gain. Revenge for the manager? They were the only musims in the department. There are other staff with Asian ethnicity with whom I had very good relations with and we talked about their ways and culture in the same way. Others said this victim talked about his religion with them in their statements. It is the way it is portrayed by this person that is the crux of the dismissal. No one interprets anything as offensive or belittling in the very few circumstances that the odd comment took place in a group. The fact that they say to the managers that they kept a wide berth from me when they clearly did not is untrue. It goes on.

Be wear of any discussion becoming ammunition months later. An earlier post said everything is off limits. I agree but you can be a bully or harasser if you don’t include people in discussion. Or even worse, you can be sacked for not fitting in as a department sees fit. (Yes this was a tribunal case!)

g0liath

...a balance that your solicitor didn't feel they could back.[/QUOTE]

I told the solicitor about the evidence used in the dismissal was not shown to me. Then again in the appeal. I believed it was wrong and unlawful then and I believe it now. It forms part of my ET1 and would have been 'sifted' out at the initial stage.
If you put the work in and look hard enough (as I have found by researching) you can find fault with anything. It is a matter of applying what is found to the situation. And yes the court can also use balance of probability in their decision.
It was the £15,000 they wanted to represent me properly that stopped me going on with it.
Not what tribunals were brought into existence for when first set up. A less formal, unrepresented option to resolve disputes.

sensibleadvice

g0liath wrote: »

Hi thanks, No, Tribunals deal in facts relevant to the case and not character witnesses.
The 'victim' left the firm. The firm have only the HR manager, the Department manager, and appeal Director as witnesses.
The bundle shows what they say in their witness statements and what the interviews show are not the same and have been twisted to what was actually said.

There were allegations of the alleged behaviour taking place in front of people and this is shown not to be so. Other conversations were not deemed offensive by others and state that the victim was laughing about things and not offended by others talking about Ramadan. But as I discussed things that this person asked questions about, in an environment of friendship with the ‘victim’, and admitted to the context being different, they chose not to believe me. All they have are my word of what happened over a 'Sustained' period which is not demonstrated independently, against theirs. They are using the dignity at work policy. They ambushed me with racial harassment as the reason for dismissal in their letter but it was never presented to me until the actual dismissal letter. The policy is ‘catch all’ but there is a part that says “...It will become harassment if the conduct continues after the recipient has made it clear, by words or conduct, that such behaviour is unacceptable to him or her” and this is not discussed. I knew nothing of the allegations until I was suspended and indeed had no idea who it was until they told me in the first investigation interview.
I told the truth and because the 'victim' has taken parts of conversations that did take place and used these to an alternate context, they say I admitted to conversations in the way he purports which is not the case.
The tests that have to be demonstrated by this company, and bear in mind the actual act is not questioned as to whether it did or did not happen by the tribunal and they will not substitute their view even if it was blatantly unfair, are:
Did the employer genuinely believe I was guilty of misconduct?
Did the employer have reasonable grounds to think I was guilty?
Would my dismissal be considered a reasonable response to the misconduct?
Was there a proper investigation into what happened?

They have to show why they believed it and so use balance of probability over absolute proof to say this. Which is correct although I did not know this at the time.

The second is; can they show reasonable grounds. This is where they have to justify what those grounds are and on the back of a reasonable investigation. This is where they are going to fail. I knew this before I started as this was the principal to my challenge.
They can say that they thought it was racist and use that as an excuse so this also wouldn’t be difficult for them to justify.

This is why they think they were entitled to dispose of me relatively quickly.

I am showing that this has happened before to me and I was not sacked, and for far worse allegations. Because this was used as a reason, I can show that the person who tried this 2 years ago (The Victims manager) had brought in racism when I was about to return to work for performance allegations brought against me by this same manager. This manager had had me transferred to their section and immediately put me on a performance improvement plan then saying I was OK. They then suspended me after obtaining the technical information I was brought in for to get a specific project up and running. I fought this and showed I was being victimised for my role and benefits as I was earning more than this manager which was the spark for this vendetta in the first place.
This manager was put onto an improvement plan. I knew this as the person told me after we reconciled about 18 month later. But the interview that the investigation had with this particular manager was not what I thought my relationship was, and there were obvious resentments still held against me. The appeal interview (which I did not see)was very nasty and said I was making statements that “sounded like they were from a BNP leaflet” I couldn’t challeng this as it was not shown to me. However, 2 years ago I was always given the chance to comment on further interview evidence and it is written down in the bundle.
I also did not see any further investigation statements taken after my disciplinary hearing by other individuals and these were used in the dismissal letter. Some content was in my favour and would have helped me. I had no opportunity to challenge these and there were un-checked facts that were pointed out in the appeal but were only looked into after the appeal. There were important facts that were conveniently missed off that contradict the ‘Victim’ who says in their own words that “we were alone” when the previously used racist allegation from the last disciplinary (from him manager) was cited. Also I belittled him in front of others was not shown to be so and facts were contradictory. Finally, he has added greater and greater descriptions of things that were supposed to have been said by me in each of the 4 statements he gives of which 2 I was never shown (1 was produced just before the appeal and 1 after the upheld appeal). In fact the HR person question one of these versions saying that’s not what you said last time but it was not followed up.

They were only looking for anything that was detrimental and ignoring anything that was helping me with my case.

My advice to anyone accused of racism that is innocent is not to admit to anything as this is the ‘wild card’ that an employer can use to oust anyone they like. It goes against my principals, but in this case, telling the truth did not help me one bit. Hoverer, because my version is consistent and the ‘victims’ is not, it will be my redemption.

I am doing this on principal and the employer is standing their ground as it cannot be seen to be weak or wrong. I am confident that my version will prevail. If not, then I gave it my best shot and there is nothing I can do about it

Some points to consider and perhaps you could indicate which are correct/incorrect:

Tribunals deal in facts relevant to the case.

You've had far worse racist allegations made against you before so there's a history of this on record.

Having been dismissed under the same policy and then reinstated with a warning shows the companies' appeals process works. It doesn't mean that incident can't be used as context if it's relevant, whether the warning is spent or not.

Performance related issues shouldn't be confused with racist allegations.

Someone laughing doesn't mean they're not offended. In fact it may well be uncomfortable laughter if it's around other people.

Given the above, another less serious incident may well be considered sufficient to justify GM, given the history.

You cannot merely claim someone is not offended because that's yours or others perceptions. It is the victims perception that matters.

You say: A colleague decided to say that good natured conversations about life and death and everything in between going back a long while were against his religion and belittling and demeaning.

Company will likely say something along the lines of: An employee was subject to continued racist comments by you over a period of x years, you've been given a chance before, now they have another incident where the victim's statement claims communists were against his religion, belittling and demeaning.

Neither side denies conversations took place so it comes down to content, how the content was interpreted and perceived by the victim , especially if there's previous form on record.

sensibleadvice

g0liath wrote: »

I don’t know what the ‘victim’ wanted out of this process.

For the employer to deal with racist behaviour.

g0liath wrote: »

The fact that they were leaving anyway (proven in the investigation) indicates malice intent.

That's your perception. It indicates no such thing. On the contrary they could claim they felt they had no option but to leave due to racist behaviour.

g0liath wrote: »

It could be they were put up to it but I could never show this. Or a discrimination attempt for their own gain. Revenge for the manager? They were the only musims in the department. There are other staff with Asian ethnicity with whom I had very good relations with and we talked about their ways and culture in the same way. Others said this victim talked about his religion with them in their statements. It is the way it is portrayed by this person that is the crux of the dismissal. No one interprets anything as offensive or belittling in the very few circumstances that the odd comment took place in a group. The fact that they say to the managers that they kept a wide berth from me when they clearly did not is untrue. It goes on.

It could be that they were aggrieved at your comments.

Trying to justify or mitigate your actions by claiming it's some kind of revenge is no defence.

Trying to mitigate your actions by clamming others weren't offended is no defence.

That 'odd comment' was perceived as racist. Quite possibly from the victim's perspective, a racist comment that was the straw that broke the camels back.

Wide berth is not necessarily a physical thing. I could include wide berth in conversations; the type of conversations that could lead to remarks they find uncomfortable.

That you fail to acknowledge that you could have caused offence is a consideration for the ET.

sensibleadvice

g0liath wrote: »

...a balance that your solicitor didn't feel they could back.

I told the solicitor about the evidence used in the dismissal was not shown to me. Then again in the appeal. I believed it was wrong and unlawful then and I believe it now. It forms part of my ET1 and would have been 'sifted' out at the initial stage.
If you put the work in and look hard enough (as I have found by researching) you can find fault with anything. It is a matter of applying what is found to the situation. And yes the court can also use balance of probability in their decision.
It was the £15,000 they wanted to represent me properly that stopped me going on with it.
Not what tribunals were brought into existence for when first set up. A less formal, unrepresented option to resolve disputes.

That's possibly true. But also true for the employer who has found fault with your conduct. Twice. The court will use balance of probability in their decision. If your case is prepared on the basis of what you've posted here with irrelevant non factual points you'll struggle to get the result you're perceiving you'll get.

g0liath

The racism was not upheld, the content cannot yet be exposed until the after the case is over. All I can say is the 'Victim' was using the same unaccepted discussion as the original Manager. Conveniently it was alone and the story grows and grows unchallenged and unchecked and then left for Uni. The manager was asked to comment and the dismissal stated these reasons in writing (that they believe them both) but give an alternate option for their explanation. Then discard that thesis and carte accept everything said. By not allowing me the opportunity to comment on these allegations, they have failed in their process of a fair and unbiased investigation. By not interviewing people until after the process was at appeal, they have failed and details shown to be wrong cannot be changed so the investigation cannot be used to base their belief and justification upon.
Leaving aside the incorrect statements of fact, they don't have a leg to stand on. They even say the conversations were not racist. The Appeal makes no mention of Racist harassment only the dignity at work. I hope that helps.

sensibleadvice

g0liath wrote: »

The racism was not upheld, the content cannot yet be exposed until the after the case is over. All I can say is the 'Victim' was using the same unaccepted discussion as the original Manager. Conveniently it was alone and the story grows and grows unchallenged and unchecked and then left for Uni. The manager was asked to comment and the dismissal stated these reasons in writing (that they believe them both) but give an alternate option for their explanation. Then discard that thesis and carte accept everything said. By not allowing me the opportunity to comment on these allegations, they have failed in their process of a fair and unbiased investigation. By not interviewing people until after the process was at appeal, they have failed and details shown to be wrong cannot be changed so the investigation cannot be used to base their belief and justification upon.
Leaving aside the incorrect statements of fact, they don't have a leg to stand on. They even say the conversations were not racist. The Appeal makes no mention of Racist harassment only the dignity at work. I hope that helps.

So a 1-1 discussion took place that involved racial allegations and one person's word against another.

A subsequent group discussion took place that involved conversations about life and death and everything in between. From the victim's perspective this discussion was perceived to be against his religion, belittling and demeaning.

The victim complained and action was taken on the basis of the second (agreed) discussion but would also indicate version of events in the first discussion were likely to have some grounding even though they couldn't be upheld first time around.

That you fail to acknowledge that belittling and demeaning conversations against the victim's religion could have caused offence is a consideration for the ET.

Failing to accept that racist/relgious remarks that cause offence are not against the companies policy on dignity at work is a consideration for the ET.

g0liath

That you fail to acknowledge that belittling and demeaning conversations against the victim's religion could have caused offence is a consideration for the ET.

Failing to accept that racist/religious remarks that cause offence are not against the companies policy on dignity at work is a consideration for the ET.[/QUOTE]

Thanks, I looked and found that I had already stated that if they were offended, then they needed an apology right at the outset. I didn't say I had offended but as this was from the very beginning, it will definitely if they felt offended, by anything, they needed to say so and it would not be a problem to make amends. I did accept that if they had been offended I was only too happy to say sorry.