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Unfair dismissal - HELP PLEASE
StarwarsSloth94
Posts: 3 Newbie
Hi,
I would be very grateful if anyone can provide advice and guidance on what my next step needs to be with this issue.
I have worked for the same company for the last 5 years, and in this role for the last 2. I was put in this position during a company reshuffle. This was the second company reshuffle I had been subjected to. No formal training has ever been given for the sale position, I was just thrown in at the deep end. My job title was Account executive but the job was basically sales, although not typical sales role as should items requested not be in stock then those had to be sourced, bought and priced in order to supply our customers, and those items in stock did not carry a standard price to be quoted to customers.
Approx 5 weeks ago while on booked annual leave, I received a letter of Suspension pending disciplinary investigation. The letter stated I was suspended from work until further notice pending investigation into an allegation of gross misconduct. The allegation is poor performance.
The letter advised me that I had been placed on suspension on full pay. The letter stated that this suspension did not constitute a disciplinary hearing and did not imply any assumption that I was guilty of any misconduct. This came totally out of the blue as I had not been given any indication in the days, weeks or even months leading up to this that there may have been an issue or concerns that my work was not up to standard.
A disciplinary hearing was arranged for 2 weeks later. At this hearing the managing director was accompanied by the financial director and they produced the following evidence, none of which I was aware of prior to the meeting or had time to examine or consider.
1) Approx, 30 emails taken from my company email inbox covering a 3 month period, which the MD said proved that my performance was inadequate.
2) A list of days/times over a week time frame that the company say I took additional breaks outside of my allowed allowance.
3) Reported that other staff members had made anonymous complaints, verbally, regarding length of break times.
Summary of findings were,
Ignoring emails and requests from Account customers
Failing to update clients with ETA’s (on deliveries)
Ignoring quotation requests for parts.
During the meeting I raised a number of issues and asked for further information and evidence.
1) The number of emails produced to evidence poor performance did not reflect my performance, and was a small percentage of the emails received on a daily basis.
2) That the list of break times produced did not show times of allocated breaks taken but listed the alleged additional breaks as Lunch break and Afternoon break.
3) I requested data on total amount of emails received in the 3 month period leading up the the suspension in order calculate the percentage of mails not responded to.
4) CCTV imagery showing referenced during meeting be made available to support the company allegations of additional breaks.
5) Requested information how performance was measured given that the role did not have any targets
6) Copy of the minutes of the meeting.
7) That should the company rely on the complaints of others then the complaints should be logged formally in writing. If not then they should be withdrawn
8) Asked the Managing director for an explanation why the company disciplinary procedure was not followed before initiating investigation and suspension
The Managing Director took the decision to extend the suspension for a further 7 working days in order to provide the information that I had requested, including the minutes of the meeting, written confirmation of the extension to the suspension to include, reasons for, length of and procedure after, and to further investigate the issues I raised. However I felt the Director was dismissive and uninterested generally. No disciplinary action was taken at this meeting. I learned shortly afterwards from a colleague that my position within the company had already been filled.
On closer examination of the emails provided by the company to evidence poor performance and ignoring emails from account customers, it appears the documents provided may not be printed direct from the email inbox. At least one of the emails provided as evidence of poor performance clearly has parts missing. The customer response indicated that additional information was requested but the request (from me) was not included in the email string. This throws doubt in my mind that the rest of the emails may not have been provided in their entirety.
During the 9 days since the meeting I had no contact from my place of work until I received an email from my pension provider that I was no longer a part of the company pension scheme.
As my suspension was completed I contacted my employer to find out what the current position was to be informed that a letter had been sent out but on checking the tracking details had been sent to the wrong address. After the email from the Pension company I believe that I have been dismissed.
I believe that my dismissal may be unfair. The company has not followed their own disciplinary procedure and by not doing so has treated me unfairly. The allegation of poor performance has not been proved as the role did not, and never has had targets to measure performance. The issue of performance seems to be an arbitrary one.
I am happy to answer any additional questions.
Many Thanks
I would be very grateful if anyone can provide advice and guidance on what my next step needs to be with this issue.
I have worked for the same company for the last 5 years, and in this role for the last 2. I was put in this position during a company reshuffle. This was the second company reshuffle I had been subjected to. No formal training has ever been given for the sale position, I was just thrown in at the deep end. My job title was Account executive but the job was basically sales, although not typical sales role as should items requested not be in stock then those had to be sourced, bought and priced in order to supply our customers, and those items in stock did not carry a standard price to be quoted to customers.
Approx 5 weeks ago while on booked annual leave, I received a letter of Suspension pending disciplinary investigation. The letter stated I was suspended from work until further notice pending investigation into an allegation of gross misconduct. The allegation is poor performance.
The letter advised me that I had been placed on suspension on full pay. The letter stated that this suspension did not constitute a disciplinary hearing and did not imply any assumption that I was guilty of any misconduct. This came totally out of the blue as I had not been given any indication in the days, weeks or even months leading up to this that there may have been an issue or concerns that my work was not up to standard.
A disciplinary hearing was arranged for 2 weeks later. At this hearing the managing director was accompanied by the financial director and they produced the following evidence, none of which I was aware of prior to the meeting or had time to examine or consider.
1) Approx, 30 emails taken from my company email inbox covering a 3 month period, which the MD said proved that my performance was inadequate.
2) A list of days/times over a week time frame that the company say I took additional breaks outside of my allowed allowance.
3) Reported that other staff members had made anonymous complaints, verbally, regarding length of break times.
Summary of findings were,
Ignoring emails and requests from Account customers
Failing to update clients with ETA’s (on deliveries)
Ignoring quotation requests for parts.
During the meeting I raised a number of issues and asked for further information and evidence.
1) The number of emails produced to evidence poor performance did not reflect my performance, and was a small percentage of the emails received on a daily basis.
2) That the list of break times produced did not show times of allocated breaks taken but listed the alleged additional breaks as Lunch break and Afternoon break.
3) I requested data on total amount of emails received in the 3 month period leading up the the suspension in order calculate the percentage of mails not responded to.
4) CCTV imagery showing referenced during meeting be made available to support the company allegations of additional breaks.
5) Requested information how performance was measured given that the role did not have any targets
6) Copy of the minutes of the meeting.
7) That should the company rely on the complaints of others then the complaints should be logged formally in writing. If not then they should be withdrawn
8) Asked the Managing director for an explanation why the company disciplinary procedure was not followed before initiating investigation and suspension
The Managing Director took the decision to extend the suspension for a further 7 working days in order to provide the information that I had requested, including the minutes of the meeting, written confirmation of the extension to the suspension to include, reasons for, length of and procedure after, and to further investigate the issues I raised. However I felt the Director was dismissive and uninterested generally. No disciplinary action was taken at this meeting. I learned shortly afterwards from a colleague that my position within the company had already been filled.
On closer examination of the emails provided by the company to evidence poor performance and ignoring emails from account customers, it appears the documents provided may not be printed direct from the email inbox. At least one of the emails provided as evidence of poor performance clearly has parts missing. The customer response indicated that additional information was requested but the request (from me) was not included in the email string. This throws doubt in my mind that the rest of the emails may not have been provided in their entirety.
During the 9 days since the meeting I had no contact from my place of work until I received an email from my pension provider that I was no longer a part of the company pension scheme.
As my suspension was completed I contacted my employer to find out what the current position was to be informed that a letter had been sent out but on checking the tracking details had been sent to the wrong address. After the email from the Pension company I believe that I have been dismissed.
I believe that my dismissal may be unfair. The company has not followed their own disciplinary procedure and by not doing so has treated me unfairly. The allegation of poor performance has not been proved as the role did not, and never has had targets to measure performance. The issue of performance seems to be an arbitrary one.
I am happy to answer any additional questions.
Many Thanks
0
Comments
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At a first glance it does indeed seem that your dismissal is likely to have been unfair. Do you have a copy of the disciplinary process that they did not follow? They certainly don't seem to have been through the steps of any procedure recommended by ACAS.
I'm not quite sure what to recommend, except to record that I remain confused about what part of your performance or other issues addressed in the disciplinary is supposed to constitute gross misconduct..... Perhaps when you actually receive their letter, this may be clearer.Ex board guide. Signature now changed (if you know, you know).0 -
Must agree; poor performance isn’t gross misconduct. It’s at best an improvement plan.0
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Thank you very much for the responses.
I do have a copy of the company Disciplinary and grievance procedure. None of this has been followed.
Without going into a huge amounts of detail the Disciplinary procedure reads like this.
Scope….will only be used when necessary and as a last resort
Suspension….not a disciplinary action. States what the written confirmation will include
Counselling…..an attempt to correct a situation and prevent it getting worse without having to use the disciplinary procedure.
Procedure for formal investigation…..gives the 3 options of take no further action, recommend counselling, proceed to disciplinary hearing.
Also states parties should be brought back after investigation and informed which option has been chosen and sets out the criteria that needs to be met to change an investigation meeting into a disciplinary.
Warnings…..Gives examples of Minor misconduct
Verbal warning……for minor failing or minor misconduct
First written warning….gives examples when appropriate
Examples of Gross misconduct……examples what may warrant a final warning, demotion or dismissal.
Final Written warning……Gives examples of when one is appropriate.
Downgrading or transfer to another post…..examples when appropriate
Timescales for expiry of warnings.
Letters of warning…..what information the letters must contain.
Appeals……against outcomes of disciplinary hearings
Appeals against Verbal and first written warnings
Appeals against downgrading, final warnings and dismissal.0 -
Sounds like a complete farce. Get on to ACAS ASAP.“I could see that, if not actually disgruntled, he was far from being gruntled.” - P.G. Wodehouse0
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StarwarsSloth94 wrote: »Thank you very much for the responses.
I do have a copy of the company Disciplinary and grievance procedure. None of this has been followed.
Without going into a huge amounts of detail the Disciplinary procedure reads like this.
Scope….will only be used when necessary and as a last resort
Suspension….not a disciplinary action. States what the written confirmation will include
Counselling…..an attempt to correct a situation and prevent it getting worse without having to use the disciplinary procedure.
Procedure for formal investigation…..gives the 3 options of take no further action, recommend counselling, proceed to disciplinary hearing.
Also states parties should be brought back after investigation and informed which option has been chosen and sets out the criteria that needs to be met to change an investigation meeting into a disciplinary.
Warnings…..Gives examples of Minor misconduct
Verbal warning……for minor failing or minor misconduct
First written warning….gives examples when appropriate
Examples of Gross misconduct……examples what may warrant a final warning, demotion or dismissal.
Final Written warning……Gives examples of when one is appropriate.
Downgrading or transfer to another post…..examples when appropriate
Timescales for expiry of warnings.
Letters of warning…..what information the letters must contain.
Appeals……against outcomes of disciplinary hearings
Appeals against Verbal and first written warnings
Appeals against downgrading, final warnings and dismissal.
Which is all well and good if the procedure is a contractual requirement. Most contracts are worded so that it is not.
If it is contractual and they were to dismiss you without following it you would have a claim for wrongful dismissal (i.e. breach of contract) regardless of whether the dismissal was fair or not.
However, all that would get you is a few days pay (maybe a couple of weeks max) to compensate for however long it would have taken then to do it properly.
It would not, in itself, make the dismissal unfair. That would be a separate matter judged on the normal criteria used by a tribunal.
They are....
Does the employer have a reasonable belief that the misconduct took place?
If so, is dismissal within the range of sanctions a reasonable employer may choose?0 -
You will need to confirm the reason and date that you were dismissed: was it performance or misconduct? Nothing in the situation you describe suggests gross misconduct would be a reasonable reason for dismissing you. You need to have been given some time to address the allegations regarding breaks and nor replying to customers, and to improve your performance in these areas.
Have a read of the ACAS guides to disciplinary procedures and Conducting Workplace Investigations.
Check to see whether your company has an Appeals process in the Employee handbook. While you don't have to use the process, if you don't any tribunal award could be reduced by 25%. Consider whether you really want to be able to return to the employer, or are you better off just moving on. Your appeal needs to explain the reasons why you disagree with the decision that has been made; e.g.
- the evidence produced was not sufficient to establish that you were guilty of the offence
- the penalty is too harsh
- the employer considered previous disciplinary warnings which are too old to take into account
- the employer did not take factors which contributed to the offence properly into consideration eg training, lack of performance standard, no rules on breaks, etc.
If you want to take legal action against your employer you need to start the ACAS "Early Conciliation" process within 3 months less 1 day of the day you're dismissed. You can start the process while you are waiting for the employer's appeals process to conclude, so I would start assembling everything you need for "Early Conciliation" now, so that you can go straight into the process when you need to.
You can call the Early Conciliation helpline on 0300 123 1122 to check that they will definitely be able to help.
Check that you are paid your contractural notice and any holidays you are owed - your notice period starts from the day you were dismissed.The comments I post are my personal opinion. While I try to check everything is correct before posting, I can and do make mistakes, so always try to check official information sources before relying on my posts.0 -
Have a read of the ACAS guides to disciplinary procedures and Conducting Workplace Investigations.
Indeed. However it is important to understand that these are just guidelines, statutory procedures no longer exist. The employer must conduct a fair process but it is quite possible for a significantly different procedure to be fair.0 -
I think people are being a bit soft on you tbh.
Ignoring emails from customers is simply not acceptable, missing one or two in 3 months would be understandable but 30 in 3 months, or one every other working day is simply not.
There doesn't need to be a target based on this, its a reasonable assumption from the employer that you reply/action all.Don't trust a forum for advice. Get proper paid advice. Any advice given should always be checked0 -
Personally they probably still could of got the outcome they wanted but they have done it the complete back to front way.
If all they have accused you of matches what you've told us then a Suspension seems the first screw up given thats usually meant to be avoided at all costs in ACAS's eyes.
If the emails were only used to measure your performance I think you'd have a good chance of making an argument.
Seems they have rushed themselves on this.Save £12k in 2019 -0 -
AstroTurtle wrote: »Personally they probably still could of got the outcome they wanted but they have done it the complete back to front way.
If all they have accused you of matches what you've told us then a Suspension seems the first screw up given thats usually meant to be avoided at all costs in ACAS's eyes.
If the emails were only used to measure your performance I think you'd have a good chance of making an argument.
Seems they have rushed themselves on this.
Suspension, on full pay, is a neutral act and is a significant cost to the employer.0
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