Employment Tribunal Advice Please

Converse20

steampowered wrote: »

If you've already received a bundle, the respondent's solicitors may have already spent a substantial amount of time preparing for the hearing.

If that is the case you may not get a better settlement offer. Your leverage to obtain a better settlement could reduce as further costs are spent preparing for the hearing. So it may be time to seriously consider the £15k offer (should be straightforward to get your Tribunal fees + a neutral agreed reference tacked onto that).


s97(1)(a) of the Employment Rights Act 1996 provides that, in relation to an employee whose contract of employment is terminated without notice, the effective date of termination is the date on which termination takes effect.

If the employer was entitled to dismiss you immediately for gross misconduct, then I would have thought you would not meet the 2 year minimum service requirement. Although if the employer was entitled to dismiss you for gross misconduct your unfair dismissal claim would have failed regardless of your length of service.

On the other hand, if the employer was not entitled to dismiss you immediately for gross misconduct, then I would have thought your employment contract would not come to an end until such time as you either accepted the employer's breach of contract in dismissing you or the minimum notice period would have expired, which would take you over the 2 year requirement. I am assuming that the employer's notice of termination of your employment did not seek to rely on a PILON clause in your employment contract.

Before getting to Tribunal you should probably read and attempt to understand the Supreme Court's decision on this point in Soc Gen v Geys, which is one of the key sources of law in this area: http://www.bailii.org/uk/cases/UKSC/2012/63.html.


I wouldn't spend too much time on trying to prove that the respondent or their solicitors were "lying".

Do remember that the Tribunal is there to decide whether you have been unfairly dismissed. It is not there to decide whether anybody was lying. Lying is generally not illegal anyway.

In any event I think it is stretching it to describe this as a "lie". The respondent and their solicitors are perfectly entitled to put forward a robust view of their legal position. They do not owe you any duty of care at all. If you disagree, it is up to you to take your own legal advice.

So with regards to if they were correct to dismiss without notice. Thier case is weak I believe. They dismissed me without any evidence, in my absense and have stated in the statement of the dismissing manager that he made the decision to proceed with my length of service in mind.
The full case, from investigation and suspension, through to dismissal, took place whilst I was absent from work. Signed off by the doctor as unfit to work.

They set out to dismiss me following my disclosures made in the public interest. In terms of a timeline - I made my first disclosures in Jan to the employer. They were ignored extensively until Feb when I took them to the regulatory body. (Anonymously but giving full details.. in hindsight it was obvious it was me) I was then assaulted at work in late Feb and went off sick. They would not let me return for anything. I tried and tried and they blocked me consistently. Ignored me until I raised a grievance about it. This was then held in march (months are made up. By the way) lasted 45 minutes. Then security came into the room and interviewed me about an alleged incident in Jan. They suspended me. Whilst signed off sick and whilst attending a grievance about trying to return to work.
I spoke about my disclosures in the meeting, kind of, and we had a heated debate about it. Following this I made a full report to the regulatory body giving full details and stating that I felt I would be dismissed following my first report. Obviously we know that I was dismissed. This was in my absense at 102 weeks and 6 days and was communicated at 103 weeks and 1 day.

I did nothing wrong and there is no evidence to say that I did. Thier investigation was farcical.

Converse20

steampowered wrote: »

If you've already received a bundle, the respondent's solicitors may have already spent a substantial amount of time preparing for the hearing.

If that is the case you may not get a better settlement offer. Your leverage to obtain a better settlement could reduce as further costs are spent preparing for the hearing. So it may be time to seriously consider the £15k offer (should be straightforward to get your Tribunal fees + a neutral agreed reference tacked onto that).


s97(1)(a) of the Employment Rights Act 1996 provides that, in relation to an employee whose contract of employment is terminated without notice, the effective date of termination is the date on which termination takes effect.

If the employer was entitled to dismiss you immediately for gross misconduct, then I would have thought you would not meet the 2 year minimum service requirement. Although if the employer was entitled to dismiss you for gross misconduct your unfair dismissal claim would have failed regardless of your length of service.

On the other hand, if the employer was not entitled to dismiss you immediately for gross misconduct, then I would have thought your employment contract would not come to an end until such time as you either accepted the employer's breach of contract in dismissing you or the minimum notice period would have expired, which would take you over the 2 year requirement. I am assuming that the employer's notice of termination of your employment did not seek to rely on a PILON clause in your employment contract.

Before getting to Tribunal you should probably read and attempt to understand the Supreme Court's decision on this point in Soc Gen v Geys, which is one of the key sources of law in this area: http://www.bailii.org/uk/cases/UKSC/2012/63.html.


I wouldn't spend too much time on trying to prove that the respondent or their solicitors were "lying".

Do remember that the Tribunal is there to decide whether you have been unfairly dismissed. It is not there to decide whether anybody was lying. Lying is generally not illegal anyway.

In any event I think it is stretching it to describe this as a "lie". The respondent and their solicitors are perfectly entitled to put forward a robust view of their legal position. They do not owe you any duty of care at all. If you disagree, it is up to you to take your own legal advice.

Also. The bundle was received in October. Well before any settlement discussions.

annandale

I do think you need to get advice from a lawyer as to whether they think your case is strong and theirs is weak.

People with strong cases can and do lose tribunals.

With regards to the disciplinary process. Did you have anyone in with you during that process? A colleague, a union rep? Do the minutes of the meetings you had accurately reflect what happened?

I completely understand why you want to go the full way. But you need to have a realistic prospect of success particularly if there's any prospect of you losing and having to pay costs.

It's not an easy process to go through. You'll have people trying to tear your evidence to pieces on the witness stand. You'll very likely have ex colleagues lying about you.

It's horrible to sit and hear. And the biggest concern I would have about all of this is that you have a company who can afford to employ barristers. You have to be able to show their case is weak. That is going to be much easier for a lawyer to do than someone with limited experience of employment law.

I'm not sorry I took my ex employers to tribunal but it was stressful. Gruelling. At a time when I was already under stress. If you have someone who knows what they are talking about when it comes to employment law having them to represent you on the stand and state your case is going to take the pressure off you. Massively. They'll also be able to challenge legal points that you might not pick up on.

You really should get advice about the issue about whether you did have two years service. That's going to make a big difference to your case.

The last thing you want to happen is that you lose, you get nothing and you have a wealthy employer chasing you for costs.

Converse20

UPDATE- they've offered the £15k again today. I declined.

I also asked them for a document which basically ruins thier case.

They tried to submit a handbook that was from well after my dismissal and was completely different to the previous one. Almost to the point that it was written with my case in mind.

I couldn't actually prove that it was after my dismissal as it wasn't dated.

So yesterday I emailed them and asked for proof of when it was distributed to staff.

They provided me with proof (an email and sign off sheets) of it being produced well after (3 months) I was dismissed!!

Am I the only one that thinks that they are crazy for providing this?

Now I think two things could be possible here

The first is that they have a trick up thier sleeve. I'm getting thier skeleton argument on Thursday so I will know their angle in detail.

The second, could it be that they are not actually planning on defending, and will be looking to settle anyway? Or is this wishful thinking?

Please advise. Time is running out!

steampowered

The most likely explanation for being provided with an old handbook is that the lawyers asked for a copy of the employer's handbook, and the HR person sent the lawyer the latest handbook because that was the closest document to hand. It probably isn't deliberate. It is also not surprising that the whistleblowing policy was updated after the employer started getting sued.

When you are dealing with large companies, 99% of the time problems are down to a screw-up or general incompetence rather than anything deliberate.

I would suggest simply asking for the previous version of the handbook which was in force while you were employed.

The second, could it be that they are not actually planning on defending, and will be looking to settle anyway? Or is this wishful thinking?

Wishful thinking I'm afraid. It is possible that they might raise their offer to something like £20k at the last minute, but there is no guarantee. If you are not inclined to accept the £15k you will need to be prepared to fight this all the way.

Roughly when is the hearing out of interest? By the sounds of it very soon?

annandale

It's not uncommon for people to turn up to tribunal with falsified documents.

I still think you should get some legal advice given that you've declined an offer to settle again.

It might not ruin their case. They could simply say that they sent you the wrong handbook

Crazy_Jamie

Converse20 wrote: »

I also asked them for a document which basically ruins thier case.

How so? If you think it ruins their case solely because it's the wrong handbook, I think you'll be disappointed. It is not at all uncommon for the wrong version of a handbook to be provided by the Respondent. Steampowered has explained why that is, but the bottom line is that it is rarely done as a deliberate ploy to strengthen a case. Now if they are relying on a part of the handbook as a crucial element to their case, and the said part was not present in the handbook when you were employed, then you may well be right. But off hand given the nature of your case I'm struggling to envisage how that could be.

Converse20 wrote:

The second, could it be that they are not actually planning on defending, and will be looking to settle anyway? Or is this wishful thinking?

Wishful thinking. Once a legally represented Respondent gets to trial, they will be fully prepared to defend the case. You use the future tense in the phrase 'will be looking to settle anyway' as if they haven't recently offered you £15,000. Twice. Even parties who are looking to settle a case have a bottom line, and it appears as though that was their bottom line. Now it may well be that they will be willing to increase on that offer on the morning of trial, but there's absolutely no guarantee of that.

annandale wrote:

It's not uncommon for people to turn up to tribunal with falsified documents.

It happens, but I think it's a bit of a stretch to say that it is 'not uncommon'. Most issues with documents are normally down to error rather than falsification.

Converse20

the evidence of the dismissing manager, and appeal manager that upheld the dismissal, hinged on them following proceedures in line with the handbook, the procedures weren't in the correct book.

I asked for the correct book, they stated that the only one was the one that they provided. I then found it in an old email from when asked HR for a copy ages ago. (Before the case and before my dismissal) I provided the book. They said that it was old and irrelevant but agreed that it was the book that came before the one that they gave as evidence.
The email that they sent me today stated that the book that they are relying on isn't relevant and therefore the statements given saying that they consulted the book are false. As the book didn't exist!

Converse20

Crazy_Jamie wrote: »

How so? If you think it ruins their case solely because it's the wrong handbook, I think you'll be disappointed. It is not at all uncommon for the wrong version of a handbook to be provided by the Respondent. Steampowered has explained why that is, but the bottom line is that it is rarely done as a deliberate ploy to strengthen a case. Now if they are relying on a part of the handbook as a crucial element to their case, and the said part was not present in the handbook when you were employed, then you may well be right. But off hand given the nature of your case I'm struggling to envisage how that could be.
Wishful thinking. Once a legally represented Respondent gets to trial, they will be fully prepared to defend the case. You use the future tense in the phrase 'will be looking to settle anyway' as if they haven't recently offered you £15,000. Twice. Even parties who are looking to settle a case have a bottom line, and it appears as though that was their bottom line. Now it may well be that they will be willing to increase on that offer on the morning of trial, but there's absolutely no guarantee of that.

It happens, but I think it's a bit of a stretch to say that it is 'not uncommon'. Most issues with documents are normally down to error rather than falsification.

The points that differed that are relevant were a new very strict whistleblowing policy, where there was previously none.

And the exact act that they say I commited, albeit without any evidence at all, is now listed as gross misconduct and punishable by summary dismissal.

Converse20

steampowered wrote: »

The most likely explanation for being provided with an old handbook is that the lawyers asked for a copy of the employer's handbook, and the HR person sent the lawyer the latest handbook because that was the closest document to hand. It probably isn't deliberate. It is also not surprising that the whistleblowing policy was updated after the employer started getting sued.

When you are dealing with large companies, 99% of the time problems are down to a screw-up or general incompetence rather than anything deliberate.

I would suggest simply asking for the previous version of the handbook which was in force while you were employed.


Wishful thinking I'm afraid. It is possible that they might raise their offer to something like £20k at the last minute, but there is no guarantee. If you are not inclined to accept the £15k you will need to be prepared to fight this all the way.

Roughly when is the hearing out of interest? By the sounds of it very soon?

It starts on Monday!