Imminent Employment Tribunal hearing

[Fyffesy]

Does anybody else have any thoughts on this?

[elpulpo]

At this late stage, your prospects of success lie with how well prepared you are at the ET. So concentrate on making sure you've all your documents in order. Pay particular attention to your statement of loss. Have a good look at the site I recommended.

[greendollar]

Taking over a month to arrange an appeal is a procedural failure.

Had he been reinstated after the appeal, would the employer have paid him for a whole month that he'd been unemployed? I think not.

 

 

Hi Elpulpo ,

 

Could you elaborate please ?

I am still waiting for a tribunal date ( 15 months and counting ) My firm made me wait 7 weeks to hear my appeal , even though their handbook states ' appeals will normally be heard within 7 days '.

This is not something I have bought up with my union or complained about to the ET...... I'm thinking that it might be to my advantage at the ET ?

 

Are there set down time limits to hear appeals ?

Edited February 19, 2010 by greendollar

[elpulpo]

All I mean is, an employer should convene an appeal as soon as possible. Unless they have a damn good reason to delay it. Which usually they wouldn't.

They might occasionally have reason following a hearing for there to be a delay, whilst they investigate further.

There are no set time limits, just what is deemed 'reasonable' by an ET.

Something to put to the respondant under cross-examination, "so why did you take 7 weeks to convene an appeal?"

[greendollar]

Ok , thanks for that , definately a little more ammo to add to my case seeing as they are a big company employing thousands who think that if they ignore ex-employees they'll go away

[Bigredbus]

Hi 'Fiffesy',

 

Point by point, I understand that:

 

a) No written contract... Contracts of employment do not have to be in writing, however, he is entitled to a statement of particular of employment within two months of starting work.

 

b) The 'copy' of the company's disciplinary procedures was not up-to-date. Although, as you mentioned, the new procedures came into force in April 2009 and should have been followed. Nevertheless, a tribunal will look at what steps have been taken (basically, the employer should have followed the three steps: letter, meeting, appeal).

 

c) The more serious the allegation, the more thorough the investigation... Results and details of the investigation should have been disclosed during the meeting. Now, I remind you that if the initial procedure is flawed in some way, a refusal by the employer to permit an employee to exercise his right of appeal, to which he is contractually entitled, will render a dismissal unfair (case point: West Midlands Co-operative Society v Tipton).

 

d) Regarding the involvement of the 'boyfriend'... not enough details about his connections to the business to form a view...

[Fyffesy]

Thanks bigredbus. Can you clarify a few things please.

 

 

a) No written contract... Contracts of employment do not have to be in writing, however, he is entitled to a statement of particular of employment within two months of starting work.

 

My friend was never provided with any statement of employment, written or orally. But isn't that impossible to proove if the employer lies and simply says she had in fact provided it? And what are the consequences to the employer if they are found not to have given this statement?

[Fyffesy]

b) The 'copy' of the company's disciplinary procedures was not up-to-date. Although, as you mentioned, the new procedures came into force in April 2009 and should have been followed. Nevertheless, a tribunal will look at what steps have been taken (basically, the employer should have followed the three steps: letter, meeting, appeal).

 

The employer has provided their "notes" taken at the time which clearly show that no procedure was followed. My friend was telephoned 3 days after the incident, told to attend then dismissed. But can this in itself be enough to be judged unfair dismissal? The employer seems supremely confident that because they had reasonable grounds, the disciplinary procedure was irrelevant.

Edited February 20, 2010 by Fyffesy

[Fyffesy]

 

c) The more serious the allegation, the more thorough the investigation... Results and details of the investigation should have been disclosed during the meeting. Now, I remind you that if the initial procedure is flawed in some way, a refusal by the employer to permit an employee to exercise his right of appeal, to which he is contractually entitled, will render a dismissal unfair (case point: West Midlands Co-operative Society v Tipton).

 

The employer didn't disclose anything at the meeting. My friend was summonsed, accused and dismissed entirely based on what the boyfriend saw. At the appeal 5 weeks later they "impartial" chairman (the employer's friend) said he had been provided with evidence from the employer's boyfriend. He didn't explain what the evidence was and supplied no copies of any document (he has put this in writing)

 

The employer did grant an appeal but only after my friend had discovered on the internet that he had a right to one. Will the fact that they didn't inform him of his right to appeal work against the employer or is this irrelevant if they can convince the judge that they had reasonable grounds to dismiss?

 

I'd appreciate anybody's thoughts on this.

 

Thanks in advance

[Bigredbus]

On Post #32:

A copy of the statement of particulars of employment signed by your friend should have been kept in his employee's file by the employer. As from October 2004, an employment tribunal normally has to award either 2 or 4 times a week's pay if an employer is "guilty" of a failure to provide written particulars of employment to an employee, but only if that "guilt" is established in the course of other proceedings before that tribunal.

 

On Post #33:

Failure to follow the code of practice on disciplinary and grievance at work is not, in itself, enough to be 'judged' as unfair dismissal but a tribunal will be able to adjust any awards by up to 25% for unreasonable failure to comply with the code.

 

On Post #34:

Documents related to the investigation, witnesses' statements, and minutes of meetings should have been provided and explained.

[Fyffesy]

Thanks.

 

I presume that nothing can be done about the particulars of employment part at this stage.

 

With regard to the witness statements, they refused point blank to supply them to myself and when the ET wrote to them to tell them to hand them over, they again refused and suggested that the way the order was written allowed them to only hand them over 7 days before the hearing itself. What annoys me is that despite their arrogance and contempt for the ET, they now look unbeatable because of the witness statements which arrived today.

 

It is absolutely obvious to me that they have withheld these witness statements since June 09 because it has now put them in the powerful position of being able to alter them accordingly before eventually submitting them. They've got 4 liars on board now who have signed backdated statements (incidentally in the exact same format/font etc as the employer's statement) and it seems that there's nothing we can do about it because there is no evidence to prove what they've been up to.

 

I've prepared a few questions to hopefully catch them out at cross examination but I'm sure that they will have prepared for these in advance.

 

It's so frustrating because they've been deliberately vague up until now which has allowed them to produce several statements (dated July 09) which have obviously been written very recently.

[Bigredbus]

During the course of the initial disciplinary procedure, those witnesses' statements should have been disclosed... They will have some explanation to do in order to satisfy the court as per their failure to do so...

[Bigredbus]

elpulpo[/b];2771635]

As I understand it (Correct me someone?), Respondants can present evidence to substantiate their decision that they evidently discovered after the dismissal. And that's deemed reasonable.

Rather like the police arresting someone and putting them straight in prison, then only investigating the crime if the condemned lodges an appeal, IMO.

 

Valid in the case that new evidence is presented, not principal evidence or else it would be worse than opening 'Pandora's box' (fabricating evidence)...

[elpulpo]

Do you have minutes of the disciplinary/appeal hearings? Any correspondence? Did your friend have a witness at either hearing?

I wouldn't get too dispondant, this guy is lying. If you scrutinise the evidence carefully, and plan some cross examination, he could go badly wrong here.

The Respondants best plan would have been to concede that there were procedural inadequacies, but submit the evidence of subsequent investigation to back up his decision. Not perfect - but trying to forge evidence could put him on very dodgy ground.

Has he got his witnesses actually giving evidence at the ET?

[greendollar]

You could ask the Tribunal to order that the witnesses attend the tribunal so you can cross examine them as their statements were not made available to you before your disciplinary or appeal .

[Fyffesy]

Do you have minutes of the disciplinary/appeal hearings? Any correspondence? Did your friend have a witness at either hearing?

I wouldn't get too dispondant, this guy is lying. If you scrutinise the evidence carefully, and plan some cross examination, he could go badly wrong here.

The Respondants best plan would have been to concede that there were procedural inadequacies, but submit the evidence of subsequent investigation to back up his decision. Not perfect - but trying to forge evidence could put him on very dodgy ground.

Has he got his witnesses actually giving evidence at the ET?

 

We don't have the minutes as such from the disciplinary hearing as it was an ambush but we do have "notes" taken from this hearing by the landlady which appear to be factual. We do have the "impartial" chairman's minutes from the appeal which are annoyingly vague and open to manipulation from their side.

 

As my friend was ambushed at the disciplinary hearing he was denied his statutory right to be accompanied. My friend also didn't take anyone to the appeal as he doesn't know anyone with a union background and also didn't want to risk a colleague's job by asking them to be seen to take sides.

 

They have certainly forged the dates of their statements but they are cleverly written by the employer's boyfriend. He is an intelligent man but I'm hoping that, as the employer herself has actually signed the documents he has prepared for her, we may be able to catch her out in the cross examination.

 

We don't know if the employer will be bringing their witnesses but we do know the "impartial" chairman will be there. My friend has decided not to ask either of his two witnesses to attend. Against my advice I might add. This is mainly because the he no longer speaks to the colleague who made the error. The colleague has informed me that there is no way he will attend even if he gets a summons (which may lead to an unwanted adjournment). His guilt at losing his friend his job has affected him badly. The other witness has nothing more of relevance to say other than what appears in his statement.

[Fyffesy]

You could ask the Tribunal to order that the witnesses attend the tribunal so you can cross examine them as their statements were not made available to you before your disciplinary or appeal .

 

Their witness statements don't say much to challenge them on really. They are basically saying they saw my friend at the bar receiving drinks at certain times but have no idea if they were paid for or not.

 

Why on earth they chose to withhold these rather unspectacular statements for 8 months I'll never know. I can only conclude that they have either only recently been written or they were held back in case other evidence cropped up and they needed to alter them before submitting them.

[elpulpo]

They are basically saying they saw my friend at the bar receiving drinks at certain times but have no idea if they were paid for or not.

 

I can't see that such statements are of any use to the respondant then.

They don't provide any evidence that he wasn't paying for drinks.

 

Have they provided any evidence of stock deficiencies, BTW?

 

I think what you need to concentrate on getting across at the ET are the procedural inadequacies. So have a good look at the ACAS Code and note all the points the employer failed on -

-no prior, written notice of disciplinary

-no evidence

-no right to accompaniment

etc, etc.

[Fyffesy]

 

Have they provided any evidence of stock deficiencies, BTW?

 

I think what you need to concentrate on getting across at the ET are the procedural inadequacies. So have a good look at the ACAS Code and note all the points the employer failed on -

-no prior, written notice of disciplinary

-no evidence

-no right to accompaniment

etc, etc.

 

They have provided various print outs of data records but not provided the unit of measure for each. For example, the pub's sales of strongbow were 48.7. It doesnt say if that's pints, litres, ml etc. We have written them asking for this (amongst other things) and they have responded only by saying our request is "baffling". I've drafted a letter to send tomorrow asking for the information again and stating that it's akin to ikea selling flat pack furniture without the instructions. We've pointed out that they have made it impossible to cross reference these sales documents to see if what they are claiming is true. Pubs have their sales strictly monitored by the brewery who own them. This cannot be altered by them but I'm 99% certain that they have altered their own sales figures.

 

I've already prepared an extensive comparrison between the ACAS guide and their actions as well as a comparrison between their own disciplinary procudure and their actions. They must surely already know that they have massively contradicted both. But is this enough to win the case alone?

Edited February 22, 2010 by Fyffesy

[elpulpo]

It'll probably be enough to get a verdict of unfair dismissal.

What award you might get is a different matter. What an ET will consider, having established that the procedure was lacking, is - 'Had the employer gone about the disciplinary process in a reasonable manner, would their decision have been different?' If the ET feels that if the employer had followed a fair procedure they would have arrived at the same conclusion, or that the employee's actions contributed to the situation to an extent, then they can reduce any award, often down to zero.

Known as 'The Polkey Principle'.

[Fyffesy]

My friend doesn't care about the financial side of it at all. He just wants his name cleared. To be perfectly honest I'd say that even if the employer had investigated it as thoroughly as they later did, they would still have reached the same conclusion. In fairness it's easy to see why they jumped to that conclusion. Their witness statements add to this a little but I think it's a murky area. They have fine tuned their own statements to be incredibly convincing so I'm really not confident to be honest. My friend is a realist but I don't want to get is hopes up or indeed dash them in advance. It's a tricky one.

[elpulpo]

It comes down to a very simple question really, "What evidence did the respondant have that he was not paying for drinks?".

The respondant doesn't have to prove things 'beyond all reasonable doubt', but they do need some evidence.

[Fyffesy]

Their evidence is purely that the employer's boyfriend witnessed a drink not being paid for. The following day the employer had decided that she also saw this happen. Finally, one of their witnesses says he saw my friend receive a drink. Unfortunately this witness is an employee of theirs and has signed a statement prepared for him by the employer's boyfriend in which he adds a few incriminating remarks.

 

The employer believes thay have backed this up with till records etc but how can you pinpoint something which was never tilled in? We wrote to the employer requesting the exact time of this incident as part of the previously mentioned letter but this request was again deemed by the employer as being "baffling".

 

Presumably they don't know what time this was. The till records actually show that they employer and boyfriend has consumed several drinks that day. (They have a tab which they claim to settle at the end of the evening)

Edited February 21, 2010 by Fyffesy

[Fyffesy]

Here's an interesting quote I've just found on the Directgov website:

 

What is unfair dismissal

 

 

 

 

There are several ways your dismissal could be unfair:

• your employer does not have a fair reason for dismissing you (eg if there was nothing wrong with your job performance)
  
• your employer did not follow the correct process when dismissing you (eg if they have not followed their company dismissal processes)
  

As you may have already read, I've been hoping to clarify whether a dismissal can be ruled as unfair even when an employer makes a strong case for being "beyond all reasonable doubt". Although it only says "could", this quote suggests to me that an employer's failure to follow any disciplinary process does indeed play a major part in the scenario.

 

If the government are saying it then who am I to argue. I just hope the ET people will think the same way. I'd imagine that somehow subtly mentioning it during cross examination would work better than attempting to tell the ET people how to do their jobs.

Edited February 24, 2010 by Fyffesy

[madari]

You will find that the tibunals will always favour the employer, unless you have a watertight case.I speak from many years of experiance.

 

Good luck and keep fighting.