unfair dismissal

[shoeshopper]

PLEASE HELP!!

On 19th April my son, who is 20, was called to the boss's office at end of day and dismissed on the spot for trying to diffuse a situation involving a colleague (who admitted he was at fault and was also dismissed) which had occurred earlier that day. The only other person in the office at the time of dismissal was the shops manageress.

My husband went into the shop with my son on the following monday morning to hear his boss's version of events as we felt it had been dealt with badly. The boss said the decision would remain. We then found out that my son has been underpaid for the past 18 months under the National Minimum wage. On the Tuesday my son received a letter stating he was required to attend a disciplinary hearing on Friday 25th April. No details were given.

My son obtained legal advice through legal aid and was advised that this was unfair dismissal along with failure to pay the NMW and he was not obliged to attend the hearing as he had already been dismissed.He was told to write and inform the employer of this fact. He did that and then received another letter on Thursday informing him of a rescheduled hearing tomorrow 28th April and that my son was 'still on suspension from work on full pay pending outcome of hearing'!!!! This had NEVER been mentioned before.

The boss obviously realised that he had not gone through the correct procedures and is trying to get himself out of trouble. Should my son attend this hearing tomorrow, as it says that failure to attend will result in a decision being taken in his absence, or should we just wait now for the legal aid solicitor to take this case to tribunal.

My head is spinning. All I want is justice for my son and no slur on his future prospects on obtaining employment.

[Sidewinder]

You are obviously already aware that your son's boss has failed to apply the statutory minimum disciplinary procedure. Even in a case of Gross Misconduct for fighting or violent behaviour (which I assume is what he has been dismissed for) there is still a legal process which must be applied, or any dismissal will be 'automatically unfair'. Your son should at least have been suspended pending an investigation and hearing, and advised in writing of the allegation and date of hearing. He should have been given the opportunity to be accompanied and been given the right of appeal.

 

Sadly I think that you are right in that the employer is trying to backtrack to demonstrate that due process has been followed and is creating a paper trail should you progress the matter. Unfortunately as he was only told verbally at the time that he was dismissed (and the only other witness was a management colleague) the boss will doubtless claim that your son was only suspended at the time, and the evidence of later letters inviting him to a disciplinary will add weight to this.

 

Your son's best interests are not really served by him failing to attend the disciplinary, as it can quite lawfully be heard in his absence. It may be possible to ask for an adjournment 'whilst he compiles the facts of the case' as it is also important that he finds somebody to attend the meeting with him as a witness if possible. That is my view, but since you have already got a solicitor onto this, you should really try to speak to him as early as possible tomorrow for professional advice. A Tribunal might well look on taking the matter straight to a legal claim without exhausting negotiations with the employer as being a little hasty - it may after all be possible that the boss has plans to return your son to the workplace - who knows? Legal action should really be the last resort, not the first. How long has your son been working there? This will also have a bearing on the viability of making an Unfair Dismissal claim due to the likelihood of any award being insignificant.

 

Regarding the minimum wage issue, how much have they been paying him? He should currenly be receiving at least £4.60 per hour, and prior to October last year should have been receiving at least £4.45 per hour - this can include bonuses, tips (if paid through salary) and commissions if applicable. Less than this and you should take this up first of all with the employer, and secondly through the National Minimum Wage Helpline on 0845 6000 678.

[shoeshopper]

Thank you so much for your advice Sidewinder.

My son has worked for this employer for three and a half years (no problems). He started as an apprentice. He has now qualified and would be able to demand more pay (on top of the NMW issue) when his boss sends him for the final 6 weeks of 'finishing school' due soon, which is i think is the real reason for dismissal.

There was no violence or fighting involved. My son saw a colleague with some tablets (unknown) and told him to put them away. As the colleague had nowhere to put them my son stupidly put them in his own coat pocket in the staff room away from the shop floor until they had their break when he was going to deal with the situation. My son was acting head junior at this time and did not want his colleague to get into any trouble. Unfortunately another girl (afterwards she admitted she only did this because she did not know my son was involved and as she did not like the oher boy thought she would get him told off!!!!) had seen this other person with tablets and reported him to the manageress. She then asked for the tablets to be handed to her which they were immediately and everyone got on with their jobs for the rest of the day without further comment.

At the end of the day both boys were called in separately and dismissed, even though the other boy fully owned up to what had happened and the boss thought this to be the truth. Neither of them were accused of taking any of these tablets, just that they had them on the premises. No one still has any idea what these pills were or where they went.

The boss said he did not believe my son was involved in any way with taking drugs as he knows him to be a keen sportsperson and only even drinks very moderately. He then went on to say that he didnt think my son was dedicated enough to his job even though he has been told recently that he has been performing very well of late! I think naivety is the worst thing that happened here, and the fact that this boss could get 4 new juniors in for the price of these 2 is more to the point.

Unfortunately because he is getting legal aid via a community law centre he is unable to have unlimited access to their time.

By the way he has been geting paid just over £3 per hour!!

[shoeshopper]

Sorry, he didnt actually get the last letter until Friday 25th stating that the rescheduled meeting was on Monday 28th. As it was such short notice would it be unreasonable to ask for more time. He has a senior colleague more than willing to attend the meeting with him.

[Sidewinder]

No - this is not unreasonable in the circumstances of the case. I would suggest that you put pen to paper (or finger to keyboard) tonight and ask for an adjournment due to only receiving the letter on Friday and needing a little more time to prepare - apologise for the inconvenience. Give them a proposed time and day (Wednesday or Thursday perhaps) and get the letter put through the door or handed in first thing tomorrow.

 

You say that the other boy involved admitted his 'offence' and was dismissed - did the boss actually take the time to investigate the circumstances? If your son by this time had the tablets at this time did the boss ask why this should be the case? If the boss did not see the tablets but freely admitted that he knew that your son wouldn't be taking them, I wonder what he dismissed him for? Would the other person make a statement if approached?

 

Between now and the rescheduled hearing, put everything down in bullet point format and have your son rehearse his lines. Explain in detail what happened and stress that your son thought as 'leader' he was acting in a responsible manner and his amazement at being in trouble - also that he didn't even know what the tablets were. Make a point of all the positive things that he has done and achieved whilst working there. If it were me I would also ask why I was dismissed then written to and told that actually I had been suspended - let them know that you are aware of a discrepancy in procedure and get them to answer.

 

That's what I would do anyway!

[shoeshopper]

Thank you Sidewinder. Your advice has been invaluable. I've been going mad with this and having no one to ask.

[shoeshopper]

The new hearing date has been set to Friday 2nd May. Would it be a good idea to mention the issue of non payment of National Minimum Wage at this hearing or wait until after?

If he is dismissed (again!) would he still be able to claim backpay for the past 18 months of underpayment, seeing as technically he would no longer be employed by this company?

[shoeshopper]

As well as the above re the minimum wage issue. Could anyone tell me if there are any rules about who should chair a disciplinary hearing? In this case it is going to be the boss and his management colleague who gave the original ' verbal dismissal'!

[Sidewinder]

There are no hard and fast rules as to who should chair the disciplinary, although any subsequent appeal should ideally involve somebody other than he who held the disciplinary at which the action was taken, although this is a 'where possible' guideline and not a matter of law.

 

Whether to raise the pay issue at this stage is a judgement call. It is irrelevant to the disciplinary hearing and they will be unprepared with an answer, so I think that the best that you could hope for is a 'we'll look into it and let you know'. It may be more appropriate to file a request tomorrow for the matter to be looked at as a matter of urgency, with a view to your son receiving an answer at the meeting on Friday. That may still be insufficient time, particularly if there is a Head Office which needs to give a response, but at least it will set the ball rolling. Your son need not actually be working there to raise that particular matter, but it will help in the event of restitution that it can be paid through the payroll. Should the hearing not go his way, or even if he remains employed there and they do not address his dispute over wages, the Minimum Wage Helpline is the most appropriate next port of call.

[shoeshopper]

Thanks for that information Sidewinder. I was just thinking that as in the last letter from his boss he says 'you are currently suspended on full pay' that at the hearing it would be reasonable to ask at what rate of full pay is he on, the correct national minimum hourly rate, or the rate which he has been receiving (wrongly) for the past 18 months. I thought this might be a good way of introducing the issue.

[Sidewinder]

Thanks for that information Sidewinder. I was just thinking that as in the last letter from his boss he says 'you are currently suspended on full pay' that at the hearing it would be reasonable to ask at what rate of full pay is he on, the correct national minimum hourly rate, or the rate which he has been receiving (wrongly) for the past 18 months. I thought this might be a good way of introducing the issue.

 

Certainly wouldn't be out of order - probably best phrased as "I understand that I am currently suspended on full pay. Whilst on the subject of pay I have an issue and would be grateful if you could look into it for me".

[bed32]

While you can bring up the point of Minimum Wage at this point I am not sure what it would achieve.

 

If your objective is for your son to keep his job then I don't think mentioning the wage issue would help. If anything it might cause him to be thought a trouble maker and make him less likely to keep his job - it certainly can't help.

 

Whatever happens you can bring up the wage issue later. Even then if keeping the job is important then it should be done sensitively.

[BaldyBaldwin]

i dont believe the person who first sacked/suspended your son can site on the panel,

some thing similair happened to a friend of mine WAS guilty of gross misconduct, was suspended and dismissed at the appeal, but was reinstated because the appeal was flawed as the person who first suspended him sat on the appeal panel which ruled against him

[shoeshopper]

Hearing was today at 2pm. The employer now says that he did not dismiss my son on the Saturday, and said it was 'unofficial', even though he confirmed the dismissal verbally to my husband on the following Monday. The boy who brought in the tablets has now resigned (after being dismissed on Saturday 19th April). It seems to be that the employer wanted them both to resign to save him any trouble of investigations and disciplinary hearings.

The employer has now asked if they can have a copy of the chain of events that we had typed out for the hearing, should we give them this?They have taken a typed statement from my son stating his case and pointing out all the positive things he has achieved since working there.

The employer raised the issue of minimum wage and said that it was in the hands of the accountant and my son would 'get what he needed to'.

They are going to let him know the outcome of the hearing.

[Sidewinder]

So far so good then.

 

I think that to provide them with a copy of his version of events is a good idea. This only confirms what he has told them, and they would have to basically believe that he fabricated everything in order to dismiss him. In the event of further action they would aso have to satisfy (potentially) a Tribunal that they had good reason to disbelieve him. If the notes demonstrate absolutely no wrongdoing on his part then all that can be said of your son is that he should perhaps have sought the advice of somebody more senior at the time - hardly a sacking offence given inexperience in that situation. The notes should show that he genuinely believed he was acting in the employer's and his colleague's best interests by removing the tablets and then taking a little time to consider how best to deal with the matter. At the end of the day they need to show that any action is reasonable in the circumstances - if the circumstances demonstrate that he acted appropriately and with maturity in a difficult situation, but was then the victim of a thrid party misrepresenting what she thought she saw, then little or no action is warranted.

[shoeshopper]

Had a reply yesterday, it goes something like this:

 

Your appeal? on the 2nd may 2008, against the decision taken to dismiss you at the disciplinary hearing? on the 19th April, has been denied.

If you want to appeal? than you must do so in writing to Head Office.

 

Accountants are now reviewing your pay and any money and holiday entitlement owed to you will be paid through the next payroll.

 

There was a copy of a page from the staff handbook, which my son has NEVER seen, stating that you must not be in possession of any illegal substance whilst on duty.

 

He was then invited to telephone his boss to make an appointment to see him and try to come to some amicable agreement. He did this and was told that they would now be prepared to accept his resignation and give him a good reference for his 3.5 years of work, along with all the money that he is owed. They would require him to sign a form confirming that this matter would go no further.

 

I think that with all the contradictions ,in his procedures and what he has written, I'm not surprised he wants a compromise.

 

My son now has to call back on Monday and tell them if he is prepared to make a compromise. As he now feels it would be very awkward for him to return to work, he is keen to sort something out.

 

I think he has a point, but should a compromise be worked out between them or should it be done as some sort of legal document.

 

I would be happy for him to walk away now, unscathed, and start again somewhere new. And much wiser.

 

Any thoughts please?

[Sidewinder]

If they have deemed the substance to be 'illegal' then I wonder how (unless the owner volunteered this information) they established this? Did your son know that it was an 'illegal' substance?

 

It is clear that if the employer is suggesting a compromise agreement they must have a slight doubt in their own handling of the case. Nevertheless, if it was (or should have been) clear to your son that he was dealing with something so serious, then they could make a case that the action was sufficient to warrant dismissal in any case and it could be difficult to get a satisfactory result from a Tribunal.

 

If all parties are happy then a compromise agreement may well be the best solution. It is essential though that before agreeing it and signing, that you have it independently checked by a qualified legal professional. Whilst there will be a cost in doing so, it is often customary that the employer pays for some or all of this (although it cannot be a lawyer retained by or acting on behalf of the employer). If any cost to yourself would be prohibitive it may be worth checking your home insurance - very often in the small print there is cover for legal expenses incurred in cases such as this. The draft agreement which you need to see is written confirmation of the amount of money due to your son, confirmation that he will be deemed to have resigned, and an agreement of the wording of any reference which the employer will provide in response to future requests. The agreement for your part will be that subject to the above conditions being satisfactory your son agrees to not instigate any further claim from the employer, nor will he take any legal action in respect of this specific event in his career with the employer.

[shoeshopper]

I don't know if the owner of the substance has confirmed to the boss that it was an illegal substance or not, but my son DID NOT know what it was, we are just being informed that it was.

 

I would rather he left now and will persue the compromise route via a legal representative.

 

This whole episode was a rather fortunate situation for this particular boss who had decided he couldn't afford to keep these two trainees on, especially if he had to pay the correct pay, so he was looking for a way out. This is the general opinion of the rest of the shop, and has been hinted at by the boss himself. Although, the boy bringing in this 'substance' to work is absolutely wrong and my son, stupidly or naively, getting involved trying to help, did not help their cause at all. As they had never done anything wrong previous to this it would have very difficult for him to dismiss.

 

After 3.5 years of good conduct he's better off going now, relations could never quite recover.

 

I will keep you posted.

[shoeshopper]

My son has had a meeting with his boss and terms of a compromise have been agreed. He has submitted his letter of resignation and we have a letter from company acknowledging it. He has also been given a very good reference and 4 weeks severance pay. This, along with the underpayment of wages, is due to be paid at the end of this month.

The agreement will be finalised and then signed by both parties when the money reaches his bank account.

I would like to thank everyone who posted comments, especially Sidewinder whose information and guidance was invaluable.

It has been quite a stressful time but has fortunately ended amicably, with both sides having learned something along the way. And my son has already applied for a new job.

Fingers crossed!

[Sidewinder]

This seems like good news. Good luck to your son with the job application and all the best to both of you. Hopefully he will use some of the severance pay to buy you some chocolates or flowers - he largely has you to thank for fighting his corner!