Appeal Against Dismissal

sangie595

steampowered wrote: »

I would focus the appeal on the issue not being serious enough to constitute gross misconduct.

Pointing to how other people have been treated can be relevant I suppose, but it isn't really a very convincing argument. The employer doesn't have to treat everybody exactly the same and there could be any number of reasons why the other cases were different.

I agree. Plus claiming it was a result of a mental health problem last year seems a stretch. You are going to need more than you believe that's the reason to convince a tribunal. Especially since, if you introduce that argument, you are changing the basis of the claim to discrimination. The burden of proof for discrimination starts off with the employee, who must prove that discrimination may have taken place. I don't think you can evidence that from what you are saying.

"Throwing the kitchen sink" at a case only works if you have sound evidence.

I'd also point out that her claim is based on information from a friend who is still in employment. I'd love to be wrong about this, but I'll lay bets that friend will be an ex friend the minute this gets to tribunal. Without her being there to give evidence, you have no evidence at all!

Start by considering what actual evidence you have.

JReacher1

Masomnia wrote: »

Interesting, do you know if the reason they won was the disparity in treatment? It definitely does happen that people win on this basis.

Yes I believe so.

The person who got the final warning was in a different department and critical to the business, the person who was fired was not critical and disliked by his senior manager. It frankly was not fair and I was glad he won the tribunal.

Les79

Fergie76 wrote: »

The other person, is friends with my friend and they both work in a call centre. Stupidly they were call avoiding. My friend had 500 minutes and her friend had over 1000 a longer period and is a team leader.

I used to work in a call centre, monitoring this sort of thing.

Call avoiding was a gross misconduct issue and people were regularly sacked on the spot for it. I understand why, the agent is paid to answer calls and if you deliberately avoid them then what are they paying you for?!

I did a year or two on the phones and despised people like your friend(s) who thought they could get one up on hard-working people who did answer the calls. Most notably when someone next in line for a call 1 minute before close decided to manipulate their position in the queue so that I end up on the last call of the day (sometimes, for a laugh, I used to put people like that on high priority for the last 10 mins of the shift so that they couldn't manipulate their position! It is satisfying watching an agent get mad because, somehow, their attempt to dodge a call didn't work! They couldn't even flag it up to anyone because they'd reveal their call avoiding!).

I moved into a department which monitored agent performance and call avoiding was one of them. Used to take delight in exposing agents who were call avoiding. They thought there were so clever, and the first person to ever think of the idea! How wrong they were! 9 times out of 10 I had clocked them call avoiding within the first day of them starting to do it. So I find it quite strange how these clocked up 500/1000 hours worth... Unless a case was being built up or a department like the one I worked in didn't exist there.

Sadly, it was often the case that anyone higher than 'agent' was treated differently. Not because of 'discrimination' (you've got lucky that they focused on the mental health issues, as this is the only real potential discrimination) but rather because agents are just a bum on a seat/resource and Team Leaders are a bit more crucial to the business and slightly harder to replace. Very cut-throat in some respects.

Do your appeal though, sometimes call centre management don't have a scooby doo about employment law/want to maintain a reputation so you may well 'win' if a sufficient fuss is kicked up. It may simply culminate in the job being offered back to friend. That being said, I personally think that the most just outcome would be for the company to sack the Team Leader too, so that you are both in the same boat.

I just sort of feel that your agent friend has been sacked as per the contract/handbook guidelines and that this will be sufficient for the company to argue that no discrimination took place (you got treated precisely how you should have been as per the guidelines). They didn't even stitch your friend up (or manage them out), it came about because of THE FRIEND'S error!

Brynsam

JReacher1 wrote: »

Yes I believe so.

The person who got the final warning was in a different department and critical to the business, the person who was fired was not critical and disliked by his senior manager. It frankly was not fair and I was glad he won the tribunal.

Doesn't really add up. If someone is critical to the business of course they aren't going to be sacked (although graveyards are full of people without whom a business could never manage!). Someone who wasn't particularly important would almost certainly be differently treated, and quite reasonably.

Don't believe all you hear, particularly about 'large payouts'. Normally the amount is confidential, but people love to embellish what they claim to have received.

JReacher1

Brynsam wrote: »

Doesn't really add up. If someone is critical to the business of course they aren't going to be sacked (although graveyards are full of people without whom a business could never manage!). Someone who wasn't particularly important would almost certainly be differently treated, and quite reasonably.

Don't believe all you hear, particularly about 'large payouts'. Normally the amount is confidential, but people love to embellish what they claim to have received.

The guy who was sacked had been there for 27 years and I have since been involved in a similar case with another member of staff and I know how much she got so I can guess roughly how much the guy got.

Marcon

Useful article which may be worth reading, even though it is several years old: https://www.pureemploymentlaw.co.uk/different-or-consistent-treatment-disciplinary-sanctions/

marliepanda

JReacher1 wrote: »

The guy who was sacked had been there for 27 years and I have since been involved in a similar case with another member of staff and I know how much she got so I can guess roughly how much the guy got.

100% conjecture then.

Anyway, I highly doubt a large payout will be received by someone very clearly not doing the job they were supposed to do

Gavin83

Fergie76 wrote: »

I am helping a friend draft their appeal against sacking for Gross Misconduct.

The reason for the appeal is that we feel they have not been treated fairly or inconsistently. The reason for this is that, someone else has been disciplined for the exact same thing and received a final written warning.

My friend has/had a clean disciplinary record at work. The reason we think they were dismissed is that last year, they had some mental health issues and was off work for about 4 weeks. They have suffered with the issues ongoing, but not missed any work because of it since. The manager mentioned the mental health issues during the hearing and seemed to focus in on them.

Also, they record of the hearing is not accurate and the things that my friend said in their defence was either misinterpreted or they have deliberately recorded wrong to back their own story. The hearing wasn't record, just a note taker.

My friend is young and never been in this position before, so they never took anyone in with them.

I know I have been vague, but can anyone suggest the best way to deal with this?

Thanks.

How long has your friend worked there?

JReacher1

marliepanda wrote: »

100% conjecture then.

Anyway, I highly doubt a large payout will be received by someone very clearly not doing the job they were supposed to do

Not really but as you know none of the details I do not know what the point of your posts are

This is just an example for the OP of when two employees being treated differently for the same offence can be deemed unfair.

marliepanda

JReacher1 wrote: »

Not really but as you know none of the details I do not know what the point of your posts are

This is just an example for the OP of when two employees being treated differently for the same offence can be deemed unfair.

So why even bother holding disciplinary meetings. If ten people are in trouble for something, just give one a meeting and then whatever you do to that person, do to the rest!