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A few legal questions re employment law/tribunals etc

Dakta
Posts: 585 Forumite

I'm after some (ideally facts) but opinions, interpretations and comment welcome, and there will probably be a few more to add in due course.
I've been reading about the implied term of trust and confidence with regards to the relationship between employee and employer. Most case studies I have found relating to this being breached fall under constructive dismissal.
If somebody is unaware of this, and instead relies on a grievance procedure to raise their concerns, which ultimately fails (employer refuses to invoke grievance policy) but the employer then finds themselves later dismissed on an unrelated but trivial matter in which they made an error. The basis for the dismissal is this breach of trust and confidence, when appealing, to either the firm, ET or EAT would the previous occasions of the employer doing the same carry any weight in supporting the case, or would it strictly fall down as you would be required to recognise and resign first in this scenario?
I think I know the answer, but often there isn't a clear one so opinions are fine
Secondly, I recently reviewed another case where at EAT a dismissal was questioned over breach of trust and confidence. In this case, from what I remember, the employer performed an investigation but allowed the employee to carry on work in their trusted role, and I think this was because the company was quite busy or something and when things settled were suspended and then dismissed. I skimread it ages ago, but cannot now find this case, or anything equivelent.
Does anyone know what this case might be, or anything similar where a company has opted to continue trust in an employee despite them being under investigation?
Many thanks, appreciate these are niche questions!
I've been reading about the implied term of trust and confidence with regards to the relationship between employee and employer. Most case studies I have found relating to this being breached fall under constructive dismissal.
If somebody is unaware of this, and instead relies on a grievance procedure to raise their concerns, which ultimately fails (employer refuses to invoke grievance policy) but the employer then finds themselves later dismissed on an unrelated but trivial matter in which they made an error. The basis for the dismissal is this breach of trust and confidence, when appealing, to either the firm, ET or EAT would the previous occasions of the employer doing the same carry any weight in supporting the case, or would it strictly fall down as you would be required to recognise and resign first in this scenario?
I think I know the answer, but often there isn't a clear one so opinions are fine

Secondly, I recently reviewed another case where at EAT a dismissal was questioned over breach of trust and confidence. In this case, from what I remember, the employer performed an investigation but allowed the employee to carry on work in their trusted role, and I think this was because the company was quite busy or something and when things settled were suspended and then dismissed. I skimread it ages ago, but cannot now find this case, or anything equivelent.
Does anyone know what this case might be, or anything similar where a company has opted to continue trust in an employee despite them being under investigation?
Many thanks, appreciate these are niche questions!
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Comments
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Legal questions should be put to a solicitor not to random posters on the internet. If you get opinions that are diametrically opposed which one are you going to pick?
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Not really pick any but consider all opinions on their merits, and give way to further research perhaps - I also don't want to invoke solicitors unless I'm actually in a case (we're sort of not there yet). That makes pricey research, and research, theoretical is where we're at.
To be fair to you, I have actually attempted the highstreets in my area because it could become something - they have actually been rather useless, offer a spam can deal or settlement negotiation but act like a rabbit in the headlights when you pose a specific question. Maybe i just got unlucky (ha) but I generally rate the expertise here.
Do you have anything useful/in scope to add? I say that because I see this argument come up a lot, not just for legal stuff (which I admit in a case can be a little bit risque) but on a discussion forum around employment, what is the real harm in actually discussing it? (ie we see a lot of 'consult your union!' - well yeah we can do that when we get there, I just want to discuss it. It's through discussion many a valid point gets noted (and can go to the solicitors/union as the formal response if it warrants it). But that doesn't invalidate discussion. You might want that second opinion or consensus to give you something to go to the solicitor with.
We're also assuming solicitors are helpful in this context which is...unfortunately a separate argument. I can't say it's a wholesale issue but previously even paid advice has been rather wanting, it's worrying when you highlight something to a solicitor and they act surprised. But hey ho.
I don't really want the thread to get pulled down by people who can't/won't add anything useful trying to sort of justify their vacuum by saying I should consult someone else. I don't see my question as unreasonable as it's an invite for comment, not legal advice, even though it's on a legal matter.0 -
Dakta said:I'm after some (ideally facts) but opinions, interpretations and comment welcome, and there will probably be a few more to add in due course.
I've been reading about the implied term of trust and confidence with regards to the relationship between employee and employer. Most case studies I have found relating to this being breached fall under constructive dismissal.
If somebody is unaware of this, and instead relies on a grievance procedure to raise their concerns, which ultimately fails (employer refuses to invoke grievance policy) but the employer then finds themselves later dismissed on an unrelated but trivial matter in which they made an error. The basis for the dismissal is this breach of trust and confidence, when appealing, to either the firm, ET or EAT would the previous occasions of the employer doing the same carry any weight in supporting the case, or would it strictly fall down as you would be required to recognise and resign first in this scenario?
I think I know the answer, but often there isn't a clear one so opinions are fine
Secondly, I recently reviewed another case where at EAT a dismissal was questioned over breach of trust and confidence. In this case, from what I remember, the employer performed an investigation but allowed the employee to carry on work in their trusted role, and I think this was because the company was quite busy or something and when things settled were suspended and then dismissed. I skimread it ages ago, but cannot now find this case, or anything equivelent.
Does anyone know what this case might be, or anything similar where a company has opted to continue trust in an employee despite them being under investigation?
Many thanks, appreciate these are niche questions!
Or is there some slam-dunk win you believe you have that will overcome future employment prospects ?0 -
That is not addressing the question, I don't mind if you can't help but we can we focus on that.
Also I wouldn't try and connect dots, if previous questions were relevent/related I'd reference as appropriate.
Yeah i know I'm being a bit brutal, I don't mean or want to be, I just want to cut through it and get the info I'm seeking - and if the forum can't help it can't0 -
Dakta said:That is not addressing the question, I don't mind if you can't help but we can we focus on that.
Also I wouldn't try and connect dots, if previous questions were relevent/related I'd reference as appropriate. .0 -
To be fair, I do appreciate the niche ness of it. It is something that's going to be quite specific knowledge (though, I also do know some of the regulars have some wacko knowledge). And they do.
"I'll leave it to the mass of other posters that are rushing to help "
Chillax, it's a question, no need for the jibe. There's nothing wrong if people dont know or can't, but if anyone does I'd love the thoughts. If it actually relevet to the query anyway.
What I don't want is to deflect because it's thoughts I'm specifically after.
'Hey Dakta I see you've raised questions in the past' - of course I have, it's a forum. I answer more than I ask, but I do ask on occasion too. I also do other related stuff in my time too which also includes other businesses, employees and palaver. Dot joining with previous posts isn't going to take us any cosntructive distance, generally I'd resurrect the original thread in such cases.0 -
Dakta said:I'm after some (ideally facts) but opinions, interpretations and comment welcome, and there will probably be a few more to add in due course.
I've been reading about the implied term of trust and confidence with regards to the relationship between employee and employer. Most case studies I have found relating to this being breached fall under constructive dismissal.
If somebody is unaware of this, and instead relies on a grievance procedure to raise their concerns, which ultimately fails (employer refuses to invoke grievance policy) but the employer then finds themselves later dismissed on an unrelated but trivial matter in which they made an error. The basis for the dismissal is this breach of trust and confidence, when appealing, to either the firm, ET or EAT would the previous occasions of the employer doing the same carry any weight in supporting the case, or would it strictly fall down as you would be required to recognise and resign first in this scenario?
I think I know the answer, but often there isn't a clear one so opinions are fine
Secondly, I recently reviewed another case where at EAT a dismissal was questioned over breach of trust and confidence. In this case, from what I remember, the employer performed an investigation but allowed the employee to carry on work in their trusted role, and I think this was because the company was quite busy or something and when things settled were suspended and then dismissed. I skimread it ages ago, but cannot now find this case, or anything equivelent.
Does anyone know what this case might be, or anything similar where a company has opted to continue trust in an employee despite them being under investigation?
Many thanks, appreciate these are niche questions!
Tribunal cases aren't regularly/fully/accurately reported, so the chances of landing on one which supports whatever case you think you've got isn't high - and of course not that many cases actually get through to the tribunal stage.
Throw into the mix the fact that cases are often distinguished on the facts, and I'm afraid opinions aren't going to help you much either.Googling on your question might have been both quicker and easier, if you're only after simple facts rather than opinions!1 -
"I think you've missed a fundamental point: it's not up to the employer whether or not the grievance policy is invoked. They have to have one and they need to follow it if an employee invokes it."
I think that's more my fault with poor phrasing - a request was made by the employee for a concern to be considered as a grievance and the employer said, actually, no we won't do that, so no process, no investigation, no outcome, no appeal opportunity. That does contravene company policy, but the employee didn't quit at this point.
I do sort of want to give you details, at the same time I also want to sort of not disclose too much - realistically this will probably end up at a solicitors desk, but - and this is the key problem - solicitors, even paid advice has so far been so poor quality I want to do as much homework as possible before we get there...so I can sort of ensure when we get into the office we can answer what i need answering, and sort of be halfway there if that makes sense.
"Tribunal cases aren't regularly/fully/accurately reported, so the chances of landing on one which supports whatever case you think you've got isn't high "
True, I'm pretty sure I did find a useful reference on that area I asked about though, I'll be darned if I can find it though
I don't want to get too bogged down in the solicitor stuff for that basis, in principle I agree that that should be where the things really get clarified but I warn it's not as easy as that, it helps if you try and do your own too - you'd be really surprised.
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Dakta said:
"Tribunal cases aren't regularly/fully/accurately reported, so the chances of landing on one which supports whatever case you think you've got isn't high "
True, I'm pretty sure I did find a useful reference on that area I asked about though, I'll be darned if I can find it thoughDakta said:
I don't want to get too bogged down in the solicitor stuff for that basis, in principle I agree that that should be where the things really get clarified but I warn it's not as easy as that, it helps if you try and do your own too - you'd be really surprised.Googling on your question might have been both quicker and easier, if you're only after simple facts rather than opinions!1 -
Tbh if you paid me 200 per hour i could do a lot worse than listen and explain the lesser relevent arguments in a dispute. In fact id use a portion of that on a diary, but the reasoning for that would probably blow a few wigs here
Still nothing wrong with trying to work to support your own work0
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