Unfair Dismissal? ***WON***

[clemma]

Thank you! An ET1 will be submitted ASAP!

[elpulpo]

Has OH been given a letter setting out the new allegations and that they're to be heard at the appeal hearing(?!)

Just thinking as to whether he's able to substantiate what they're playing at.

 

SE, so you'd now suggest not even attending the appeal hearing?

[clemma]

Has OH been given a letter setting out the new allegations and that they're to be heard at the appeal hearing(?!)

 

Yes

 

Just thinking as to whether he's able to substantiate what they're playing at.

 

The GM has admitted to the OH by email that the disciplinary process was incorrect. I can only presume he is now trying to correct the mistakes made.

 

This is a HUGE, multi million pound national company we're discussing here and the General Manager is seen in high regard by Directors......would you admit to such catastrophic errors?

[SarEl]

Has OH been given a letter setting out the new allegations and that they're to be heard at the appeal hearing(?!)

Just thinking as to whether he's able to substantiate what they're playing at. Good point - I read the word letter and assumed that this had come in a letter! Did it?

 

SE, so you'd now suggest not even attending the appeal hearing?

 

Assuming that the OP can substantiate these new allegations (and if she can't yet - can get them in writing) then I see no real purpose in attending the appeal. Since the rescinding of the Statutory Procedure, a claimant does not have to appeal. It is simply better to do so in order to avoid any possible reduction of award. But in this case there is a substantial amount of evidence (it would appear) that the employer would, given wind of having got it wrong, reinstate (so you can't claim) then bide their time and dismiss fairly. The employer is obviously already realising that they have got it wrong - what happens if the OP's OH is reinstated??

[elpulpo]

Assuming that the OP can substantiate these new allegations (and if she can't yet - can get them in writing) then I see no real purpose in attending the appeal. Since the rescinding of the Statutory Procedure, a claimant does not have to appeal. It is simply better to do so in order to avoid any possible reduction of award. But in this case there is a substantial amount of evidence (it would appear) that the employer would, given wind of having got it wrong, reinstate (so you can't claim) then bide their time and dismiss fairly. The employer is obviously already realising that they have got it wrong - what happens if the OP's OH is reinstated??

Well aye, that's the danger.

[clemma]

Ok, set the record straight.

 

The OH has all letters regarding his original interview and subsequent disciplinary meetings. He also has his dismissal letter. Now, he has a chain of emails from the GM stating everything I have told you including a PDF letter on letterheaded paper SIGNED by the GM saying everything I have told you.

[SarEl]

Ok, set the record straight.

 

The OH has all letters regarding his original interview and subsequent disciplinary meetings. He also has his dismissal letter. Now, he has a chain of emails from the GM stating everything I have told you including a PDF letter on letterheaded paper SIGNED by the GM saying everything I have told you.

 

In that case - do you genuinely trust the GM to hear the case without prejudice and to make a fair decision. Or do you think that if you go in there spouting the law (which, in a sense you will have to do) telling them they can't do this etc., ec., they may panic (as they have obviously already done!) and reinstate. If the latter, and if you do not want that - you have no option but to go for breach of trust and confidence and take the risk of a reduction in award - which I have to say I think is a small risk if you argue as I have suggested.

[clemma]

We've both known from the outset that it would be an unfair hearing, and the GM has kindly shown us that it will be. I think taking the small risk in reduction of any award would far outweigh the option of working there again. There are many, many reasons (including victimisation) as to why he could not work there again. This includes 2 statements (which we have but are unfortunately marked without prejudice) that state the OH has a low level of skill/competency. This is a huge knock to his confidence as before this time there has NEVER been reason to question his work. The OH is under no illusions of everything being great if he was to work then again and we both know that within a short time they would find something to discipline and ultimately dismiss him for (correctly).

[elpulpo]

Just because a document is marked 'without prejudice', doesn't mean it is automatically privileged. It depends on the context of the document.

[SarEl]

Just because a document is marked 'without prejudice', doesn't mean it is automatically privileged. It depends on the context of the document.

 

And in fact, although I cannot be certain without seeing the documents, I would lay bets that without prejudice has no meaning at all - and that you can use them. To be "without prejudice" a document must relate to a dispute (pretty sure that one of those exists:-() and must also be a genuine attempt at resolving it. I feel fairly sure that insulting the other party would not be considered a genuine attempt to settle the dispute!

 

But without prejudice, I think your OH's employer needs to get some legal advice rather than pretend they are a legal adviser and write silly letters to you!

[clemma]

Ah...well if I tell you what these statements are about you will probably agree that the without prejudice meaning means nothing.

 

One just states that a support and training meeting was carried out with the maintenance team on two occasions. It also mentions that standards were discussed.

 

The other one is much the same except at the end of it they have written that the OH has a low level of skill/competency.

[clemma]

But without prejudice, I think your OH's employer needs to get some legal advice rather than pretend they are a legal adviser and write silly letters to you!

 

I think the silly man has underestimated both mine and the OH's intelligence.....oh, and the advice that is so easily gained from places like CAG and your good selves!

[SarEl]

Ah...well if I tell you what these statements are about you will probably agree that the without prejudice meaning means nothing.

 

One just states that a support and training meeting was carried out with the maintenance team on two occasions. It also mentions that standards were discussed.

 

The other one is much the same except at the end of it they have written that the OH has a low level of skill/competency.

 

I once discussed with my father how much I wanted an Ewok (a real live one) for Christmas - but I didn't get one! I wonder if I should have made it a without prejudice request?

[clemma]

Now that made me laugh!!!

 

Just something else he can add to his ever growing file of papers then. I mean, who would want to work for a company where one of the managers has no faith in your ability.

 

If the OH wins, I'll buy you an ewok - actually, make that a breeding pair

[honeybee13]

And a virtual shandy for the team, maybe?

 

HB x

[elpulpo]

How about sending em a 'without prejudice' email informing em that they're a shower of BEEPING BEEPS and they can go BEEP emselves?

[clemma]

I think they may be told to go beep themselves after the tribunal! I have to restrain myself as I will see these people everyday I'm at work. The OH though - well he got a lifetime ban from the park.....shame.

 

So relieved to know that he has a case though. Reading through it, it does sound so unbelievable. Getting sacked was obviously a blessing in disguise for the OH.

[clemma]

Think I may have found a way to get this appeal letter from the GM on here.....just for fun.

 

EDIT.....nope, image was too small. Goddammit. Will try tomorrow when I am less knackered.

[elpulpo]

mighty small, can I enlarge a jpeg?

I'm a Luddite, from Luddenden.

[elche]

How about sending em a 'without prejudice' email informing em that they're a shower of BEEPING BEEPS and they can go BEEP emselves?

 

Now, now no BEEPING swearing on the forum pulp .........

[elpulpo]

Vale, lo siento.

[clemma]

Just mulling this over. Should the OH be going for wrongful dismissal or unfair dismissal (or both). It's undoubtedly wrongful, but is it unfair. I have been doing a little reading, and it appears that it can be seen as unfair to dismiss someone for something that could be a one off mistake (it was), that the person had no prior warnings/disciplinarys on record etc. I mean, you tick a unit as checked, by accident, and you get sacked for it.... the fact that the OH is dyslexic, and informed his employers of this during the meetings, and that he struggles with lists doesn't seem to have been taken into consideration. He was asked why he never stated this on the application form, and he told them that there was no where to write this information (they suggested under disabilities, but my OH doesn't see it as a disability, just an annoyance). He had never brought it up before hand as he is embarrassed by it. Anyway, going off track here.

 

I have to call ACAS today anyway and inform them that the OH is not going through with the appeal so I will ask them - there is just so much background information to this that it's going to take forever to explain it all! Oh, and I must email the GM telling him to shove his appeal up his backside

 

Any ideas guys?

[SarEl]

Both - but it is the unfair dismissal (for those with 52 + weeks) that is the main claim - wrongful dismissal is essentially just to obtain notice pay (and a decision of unfair dismissal overrides this). You might also try for disability discrimination - failure to make reasonable adjustments, because the employer was told about his dyselxia (admittedly late!) and could and should have made a reasonable adjustment once they became aware of it - i.e. not sacked him. I am a great believer in kitchen sinks - throw in anything you can claim.

[clemma]

Thank you

 

His dyslexia was not mentioned on his application form for fear of discrimination He should have informed them earlier, but it's in the minutes of the meetings. Might as well go for gold eh?

 

Surprisingly ACAS have said to still attend the appeal.....ermmm, no. Told them reasons why (thanks SarEl) and they said fair enough. Ok, off to email GM now.

[clemma]

The letter regarding his appeal hearing.....

 

This is the second one they sent today due to change of date. The original one is on letterheaded paper, signed by the GM (its a PDF, which I can't upload on here as I can't delete information).

Appeal1.doc

Edited February 14, 2011 by clemma