Tribunal Advice Please

[tbbt1901]

Becky

 

It's no problem I expect your busy

 

Re compensation - I'll look at vento

 

Re witness order - I will attempt to liaise directly with the police first to see how they respond. I've just made their solicitor aware today that I will be calling the police officer to give evidence and explain his involvement, they have yet to respond to this. Given try wasted the polices time with their false allegation I'm hoping they won't want to do the same again if they are planning brinksmanship.

 

Re whistleblowing claim - I'm hoping with my explanation and the fact the ET coded it as a public interest claim that they will accept this. Where woul the respondent have got that it was coded as a PI claim as I didn't know? Also when you say "you did intend to claim something along these lines" can you put that in leymans terms....(sorry) I've read up about protected disclosures so woul this fall under miscarriage of justice or criminal activities( also is raising ET claims not a protected disclosure)

 

Thanks

[tbbt1901]

Hi, sorry I missed your last post!

 

Basically they are implying that you never intended to bring a whistleblowing claim. They may be right, which could cause a problem, depending on whether you have a sympathetic ET Judge. Just because you didn't word the claim in correct legalese shouldn't preclude you from bringing it, altho you have to show that you did intend to claim something along those lines...

 

In terms of the schedule of loss and compensation, its calculated as an injury to feelings award similar to discrimination claims. Have a look for the Vento guidelines, but the middle amount is around 15k.

 

You can request a witness order from the ET if you believe their evidence may be useful. However, you need an address to serve it on, which could prove difficult!

 

Hi becky can you help out with my latest post please

[becky2585]

Hi,

 

It would have to be up to you to try to mould the whistleblowing claim into the correct bracket (I don't know enough about it to be able to do that... All I can advise is that it would have to have made a qualifying disclosure to the employer and subsequently suffered a detriment as a result, BEFORE submitting the ET1).

 

I'm not sure merely submitting an ET1 would be sufficient to make a protected disclosure, as such allegations weren't put to the company and are unlikely to have been done in good faith. What is possible is that if you issued a claim on whistleblowing or discrimination grounds and then were victimised afterwards, that could then be a victimisation claim... But honestly I can only comment generally without knowing your situation inside out, it's a bit like working blind!

[tbbt1901]

Hi,

 

It would have to be up to you to try to mould the whistleblowing claim into the correct bracket (I don't know enough about it to be able to do that... All I can advise is that it would have to have made a qualifying disclosure to the employer and subsequently suffered a detriment as a result, BEFORE submitting the ET1).

 

I'm not sure merely submitting an ET1 would be sufficient to make a protected disclosure, as such allegations weren't put to the company and are unlikely to have been done in good faith. What is possible is that if you issued a claim on whistleblowing or discrimination grounds and then were victimised afterwards, that could then be a victimisation claim... But honestly I can only comment generally without knowing your situation inside out, it's a bit like working blind!

 

Hi becky thanks again......

 

I will wait until I have a decision back from the ET and take it from there.

 

Following disclosure of docs I requested, there is compelling evidence highlighting a grievance I filed was a sham. There was no real investigation neither was it fair. The investigation notes the chair has supplied are undated and unsigned. The appeal is again a sham and its evident from docs I have that the appeal chair failed to make the correct decision and I was in fact right and I should have had my grievance upheld. The investigation was not concluded and stopped mid investigation. I was advised things had been done that hadn't ( and vice versa) and I can prove this using the docs. this is obviously captured in my statement, in your experience is this defendable (appreciate not knowing circumstances that's a vague question). Do respondents usually look at the witness statement and cross ref this with the docs and decide from there their position?

[becky2585]

It's usually advisable to "interpret" a case as per the evidence available, but this doesn't extend to misleading the tribunal (if they're legally represented, their solicitors duty is to the court, therefore they cannot be dishonest).

 

Grievances being a sham are commonplace but the issue only really comes into play in cases of constructive dismissal, for example, or if you're trying to claim an uplift to compensation for your employers unreasonable non compliance with the ACAS code of practice.

[tbbt1901]

It's usually advisable to "interpret" a case as per the evidence available, but this doesn't extend to misleading the tribunal (if they're legally represented, their solicitors duty is to the court, therefore they cannot be dishonest).

 

Grievances being a sham are commonplace but the issue only really comes into play in cases of constructive dismissal, for example, or if you're trying to claim an uplift to compensation for your employers unreasonable non compliance with the ACAS code of practice.

 

Thanks - I guessed so, look at the evidence then interpret the case.

 

Where does the burden of proof lie in ET claims? For example if I say this was unfair because of this..... Is it for me to prove it was unfair or for them to prove it was fair, guess it may not be that simple!!!!!

Or if I say this did not follow their procedure I was victimised as they did X to me when in previous cases they have always done Y, would they then have to prove that they didn't do Y or victimse me?

 

Thanks

[becky2585]

The burden of proof works differently for each claim.

 

In terms of a claim for discrimination/victimisation, the initial burden of proof lies on the claimant to provide enough facts from which an inference of discrimination can be drawn. At that stage, the burden then shifts to the respondent to have to disprove the allegations.

 

For unfair dismissal, the burden initially lies with the claimant to prove a dismissal occurred. Once established, the burden passes to the employer to establish the reason for dismissal, and that this reason falls within one of the potentially fair reasons for dismissal.

[tbbt1901]

The burden of proof works differently for each claim.

 

In terms of a claim for discrimination/victimisation, the initial burden of proof lies on the claimant to provide enough facts from which an inference of discrimination can be drawn. At that stage, the burden then shifts to the respondent to have to disprove the allegations.

 

For unfair dismissal, the burden initially lies with the claimant to prove a dismissal occurred. Once established, the burden passes to the employer to establish the reason for dismissal, and that this reason falls within one of the potentially fair reasons for dismissal.

 

Becky

 

Thanks as usual for the perfect advise.....you should do this for a living

 

Ok.....in relation to witnesses, i originally requested shortly after cmd 'certain' witnesses I wanted to x examine at the hearing. One of these was one of the key people I raised my grievance against, the other the HR rep. In their recent correspondence these were two individuals they were not not calling as witnesses. What does this mean for me, as obviously they won't provide evidence and I won't be able to ask questions which would aid my case. On the flip side they won't be able to defend the evidence I present against them individually.

 

I'm sure you understand what I'm saying but for eg....... Mr X prevented my promotion, this is evident from what was said in X Y and Z and admitted by mr x here. If mr x isn't there he can defend this?????

[lbruk]

exactly, concentrate on what you can prove and what your statement states. If they have nothing/noone to challenge your version of events - then it is taken as truth.

[tbbt1901]

Thanks ibruk, that was my thoughts exactly..

 

But nobody else barring mr x would be able to defend his actions surely?

 

Also why would they bring her then not bring her?

[becky2585]

Just because you make allegations that are undefended, it doesn't mean the ET will believe your version of events.

 

It's actually not a good thing from your point of view that they aren't turning up for that reason alone. It's VERY easy to trip up people who were involved in internal procedures. I know one very experienced and talented lawyer who won't even call them in defence of his own client because he knows how easily those people get tongue tied.

 

You could still theoretically request a witness order from the ET, thoigh. If its granted, non attendance is a criminal offence. However, you'd have no way of knowing what evidence they will give.

 

On balance, I think the best thing is to put the relevant evidence in your witness statement and let the judge decide. You can't cross examine anyone on another persons evidence, as this would be speculation, which is a line of questioning the judge is unlikely to allow. But I find it's better to ask the more pressing/aggressive questions - it won't harm your case, and the judge will let you know when you're out of line (legal reps regularly get told to deviate from their inappropriate lines of questioning, it's all about tactics).

[tbbt1901]

Just because you make allegations that are undefended, it doesn't mean the ET will believe your version of events.

 

It's actually not a good thing from your point of view that they aren't turning up for that reason alone. It's VERY easy to trip up people who were involved in internal procedures. I know one very experienced and talented lawyer who won't even call them in defence of his own client because he knows how easily those people get tongue tied.

 

You could still theoretically request a witness order from the ET, thoigh. If its granted, non attendance is a criminal offence. However, you'd have no way of knowing what evidence they will give.

 

On balance, I think the best thing is to put the relevant evidence in your witness statement and let the judge decide. You can't cross examine anyone on another persons evidence, as this would be speculation, which is a line of questioning the judge is unlikely to allow. But I find it's better to ask the more pressing/aggressive questions - it won't harm your case, and the judge will let you know when you're out of line (legal reps regularly get told to deviate from their inappropriate lines of questioning, it's all about tactics).

 

Becky.......

 

Update on the case. Received identical letters (for both cases) stating a PHR is being convened to establish whether this or any of the claimants claims should be struck out as misconceived or if a deposit is to be paid as the case has no reasonable prospect of success....

 

I understand this but: the initial claim has already had a CMD and there has been no suggestion that this is misconceived or has little prospect of success, why the judge is now calling this into question I don't know, given he heard the CMD and established the case, no deposit order was raised as there was no suggestion that the case is weak.

The second claim: I understand why a PHR may have been called, the resp had implied in correspondence that the claim is misconceived, to which I explained that it wasn't (captured earlier in this thread). The EJ having seen no evidence would not know that this is misconceived or has little prospect of success so why is he suggesting a strike out or deposit order. this claim was submitted over 4 months ago and the resp has never raised concern over the strength of the claim, this I would have expected on receipt of the ET1, either in their ET3 or immediately following this by letter, not 4 months post.

 

The judge has since ordered the claims be heard together having agreed with both parties request. I feel very let down by this judge as everything I've requested I've not had and anything the resp has requested they have got. They have also missed 4 orders which the ET haven't taken action against (I thought this was in itself an offence). I feel this judge is prejudicing me. Can a phr be held over the phone(I believe not)

 

Thanks

[goboy]

Yes, PHR can be heard over the phone, this happened with my aunt.

[becky2585]

Yes, you can request a telephone PHR, but there would have to be a compelling reason to grant it (for example living at the opposite side of the country to the ET!) and there would also have to be no witnesses. If its just you, the judge and the respondents representative giving submissions, that should be fine, but if evidence is required, or witness attendance, you'd have to go in person.

 

Really, I think it's better done in person. It gives you a "feel" for the final hearing by easing you in gently, plus the Judge won't be able to "read" you over the phone! It could work to your advantage to go in person, as sometimes seeing the emotional side behind the bickering helps...

[tbbt1901]

Yes, you can request a telephone PHR, but there would have to be a compelling reason to grant it (for example living at the opposite side of the country to the ET!) and there would also have to be no witnesses. If its just you, the judge and the respondents representative giving submissions, that should be fine, but if evidence is required, or witness attendance, you'd have to go in person.

 

Really, I think it's better done in person. It gives you a "feel" for the final hearing by easing you in gently, plus the Judge won't be able to "read" you over the phone! It could work to your advantage to go in person, as sometimes seeing the emotional side behind the bickering helps...

 

Becky

 

As usual thanks for your help I just can't explain how good it is...... So if the is stating it's misconceived and "the ET" state it's misconceived or has little prospect of success, I would imagine it is for the resp to prove this rather than me to prove? The resp's misconceived statement will be in regards to my claim no being a whistle glowing claim I guess, so if this is their submission would they have to have evidence of this?

 

My submission was this was also an act of "discrimination" due to me bringing a ET claim against them, and victimisation. I accept this may be difficult to comment on not knowing the full case but can victimisation be relied on in ET given I was discriminated against, not under protected characteristic, but due to pursuing an ET claim?

[becky2585]

Hi again... If the ET claim was on the grounds of a protected characteristic then yes... Sorry, it's really difficult for me to help without knowing everything that's happened and the exact nature of the claims!

 

As you are unrepresented, the Judge will ask the Respondents representative to make his submissions first as to why the case has no reasonable prospects. He will then ask you why you think your case should be allowed. I honestly don't know about the burden of proof - it almost seems more informal than that, in that the Judge listens patiently to both sides and then just makes a decision on the basis of what was available.

 

The ET may order you to pay a deposit into court to proceed. If that does happen, it's worth evaluating whether you think you're still going to win, as that's when you face losing a lot of money.

[tbbt1901]

B

 

I have PM'd you, thanks

[tbbt1901]

Becky

 

Many thanks, just an update, ive had a hearing through for a PHR then CMD if you could help out prior to this thatwould be great as its 3 weeks away....

 

i have PM'd you

[caro]

Any updates?

[becky2585]

KG I'm sorry, I haven't been able to get into my PMs. The onky time I get to do this as at work, and every spare second has been taken up with extra work lately!

 

I hope everything is going ok.

[tbbt1901]

Becky

 

No problem was worrying a bit with the PHR looming appreciate your busy and obviously restricted with your PM's. Would you have any problem/do you see an issue with me reposting our PM conversation on here for yourself and other caggers to advise?

 

Caro - I'll await Beckys advise then post an update, thank you for asking .....

 

K

[caro]

Ok. We advise people not to provide advice by PM to protect both sides in case of problems, and others may be able to provide more input too. If there are others with similar problems it can help them to see how you're progressing too.

 

It's worth exploring all the options and checking advice before deciding the best way to proceed.

 

That doesn't mean that Becky doesn't give very good advice.

[tbbt1901]

Hi Caro

 

Thanks for the heads up on PM's i appreciate he reasons why, at least if fellow caggers have the full story they may be able to better advise...

 

Albeit Beckys advice is second to none - Would appreciate any advice...

 

My comments are in black.....Beckys replys are in red....my reply to her comments are in bold red so im looking for answers there please........

 

 

Hi Becky

 

 

I want to reiterate that your help and guidance has been key in me getting through this claim, if there was anything I could do for you I really would. As I have now come to trust you I thought id better give you the full story so hopefully you can better advise me, so here goes.....by the way the respondent is a FTSE top 20 UK company..

 

Thanks... you probably already know this, but the ET will take into account a company's size & administrative resources when making their decision, particularly in terms of the fairness and how much of an uplift to add for the breach of the ACAS Code, IF you are successful.

 

During a period of around 8 months a number of incidents occurred against me, which I felt were acts of victimisation, bullying and mistreatment. The final straw came when I was alleged to have committed a breach of health & safety (gross misconduct) and I was suspended.

 

Victimisation in the legal sense has to be related to a protected characteristic (Equality Act) or whistleblowing (Public Interest Disclosure Act). There must be a "protected act" (intimiating or raising proceedings) and subsequently you must suffer a detriment which can be directly causally linked. "Victimisation" because they merely don't like you is unlikely to wash.

 

The allegation, story and investigation conducted by the manager allegedly witnessing the breach is a joke. He alleges he witnessed me up a ladder without PPE on, he then went to his car to make a call and roll a fag as he was upset. He then alleges that in 1 minute while he was at his car (admittedly 10 meters from the rear of my van – in full unobstructed view of my van and the work area) I returned to my van (whilst unseen in a hi vis vest, or unheard slamming van doors) obtained all the missing equipment and set it up on the ladders. When he came back from his “fag” all the equipment was in place.

 

Was that employee allowed to smoke during work time? Can't comment on the equipment point - I don't know the background. What missing equipment? There are no guidelines on smoking in company time, only no smoking in vehicles which he stated he didnt. Equip alleged missing was: ladder stabiliser for top of ladder, ladder stopper for bottom of ladder, safety harness, fall arrest ropes, racthet strap securing ladder to wall - a lot of euipment. In every other breach of H&S ive been involved with, both personally and conducting disciplinarys for breaches, there is photographic evidence showing the breach (ie ladders with no equipment on, or photo of the unsafe area/act). The manager has NO photos showing any breach, the photos he took show the ladders with all the correct equipment on (he alleges he did this whilst he was at his car and took the photos on return to site). I shoul also point out at this point in 7 years, conducting over 6000 jobs, with 5 different managers, and numerous recorded and unrecorded unnanouced site visits, i have never breached H&S and have a 100% clean record for this.

 

I denied the allegation during investigation. The manager then provided a statement, in addition to the investigation, for the disciplinary. The statement to my amazement, contradicted what he had said & done in the investigation. Major factors such as timings, missing equipment and the actions he took were completely different from the investigation we both signed on the day.

 

Do you have both versions of the investigation and the "witness statement"? You can obviously cross examine at the hearing as to why the accounts differ so greatly - it's also worth looking at what actually happened between the investigation and production of the statement to see if there was any underlying reason for the story to have changed. If you can trip them up on this point, it would discredit a lot of their evidence at the hearing. Yes i have copies of both versions. The "WS" must have been completed later on the day of the investigation or the following day going on the date of the disciplinary invite letter. i would see no reason for anything underlying.

 

At this point I filed a grievance. The grievance including appeal took 4 months to resolve and after appeal wasn’t upheld. At this point I knew it was a sham and knew no investigation had taken place as I had provided concrete evidence in support of my points, but as these were “1 word against another” the points were inconclusive. The meetings were against the companies & ACAS codes in relation to time scales – over 30 days between raising the grievance (and appeal) and a meeting being conducted – despite this being 5 working days in the companies & ACAS codes.

 

You should ask for copies of any investigatory interviews, statements, memos, or notes that relate to the investigation of the grievance. If the disclosure deadline has passed, you can ask the ET for an order for specific disclosure of this. If they can't provide it, they clearly didn't adequately investigate the issue which would be a breach of the ACAS Code. They provided these in support of their case. which suprisingly aided my case. For the original grievnace they have provided, undated and unsigned meetings between the chair and manager 1 and 2. as they are undated and unsigned i question if they are true, when they were taken and if its a true reflection of the investigation. I'm not sure they were created to make it look as if an investigation took place. That aside there is prrof within these minutes that it was a Q&A session, no real investigation at all. He alleges...... did you do.... NO.....ok moving on. I appealed as i could prove using business data that manager 1 had lied.

In short manager 1 reduced my workload to attend a meeting, but not my colleagues workload. The orginal chair asked manager 1 to check if a reduction had occured, he checked and said no. (the chair should have done this investigation himself rather than ask a manger under investigation to check his own records (which i believe gave him the opportunity to "remove" his action of reducing my work)). At appeal i brought business records showing i had a reduction in work and no one else did. At appeal conclusion (by letter 3 weeks after appeal meeting) she advised there was a reduction in work, but it was removed on the day the work was issued, so he did therefore not mislead the chair as there was no reduction when he checked. Manager 1 had no recollection of why he would have removed this reduction in work. At disclosure of docs i asked for the audit file that the appeal chair would have used to identify the removal of the reduction in work on said date. The file recieved shows NO changes on that date, so this was clearly a lie....

 

They would probably argue that it was inappropriate due to the issues involved to adhere to the timescales - it's not uncommon, I have seen disciplinary/grievance processes (mainly in the public sector) last around six months or more. It's still an arguable point, though. I apprecaite the whole grievance process could take months, but the fact i didnt get a hearing for over 30 days without reason or explanation goes against both policies.

 

The allegation of breach of health & safety would not be heard in the grievance, this would be addressed in the disciplinary. Given I knew the grievance was a set up I took the decision to secretly record the disciplinary hearing. Day one of the hearing was fine, answered their questions, no issue. It was adjourned as they needed to question the investigating manager, despite his investigation & statement.

 

Big error, I'm afraid! Covert recording is a huge no no. This alone could be a breach of trust and confidence which, taken with any other events they want to rely on, could be sufficient to dismiss you for gross misconduct. If they take issue with this at the Tribunal, the Judge won't look favourably on you. You're going to need to come up with a very good reason for recording the hearing behind their back! Accepted now. They advised the recording was in itself was a disciplinary offence (for me and my collegaue). This was never taken any further as they reconvened the disciplinary was chosen over this incident. I guess dismissing me for this they would have had to my colleague which they wouldnt have wanted to do.

 

It also sounds as though they are following protocol - "as much investigation as reasonably possible" - so the ET is unlikely to criticise them for this.

 

On day 2 I was presented with the investigation between the chair and the investigating manager. Again to my shock he contradicted both his earlier statements in relation to items that were allegedly missing, he now “wasn't sure”. I had also obtained a statement off the client I was working at who saw I had certain PPE on and confirmed this. When the investigating manager was presented with this by the chair, this is when he wasn't sure if what he had originally stated was missing, was actually missing.

 

As with the other statement, see my comments.

 

I also alleged that the manager himself breached health & safety, which he admitted doing, yet no action was taken.

 

How did you allege this - in writing? This could be capable of being a public interest disclosure so it's very important to note the dates, times, and what was said and to whom, and in what form (written or verbal). You could really do with a record to back this up. This could be a whistleblowing disclosure if you can show it was in good faith (which, given the circumstances, it may not be, however you need an argument for this), and that it related to health and safety (one of many reasons). This could be the "protected act" I referred to earlier. In writing in my grievnace (manager 1 advised he was very safety focused and didnt breach H&S) so this point wasnt upheld. Then in writing in my disciplinary where manager 1 admitted doing it, but the company took no action. In the "recording" the chair states to HR manager 1 breached H&S but we can use this as a learning curve and take no action - again highlighting decisions are inconsistent. It is documented that he denied it then admitted it, how would i introduce this into the claim at this point? (effectively i blew the whistle but as its not raised as that in the ET would this be out of time? - it was in good faith as he was putting himself in potential serious danger)

 

During the adjournment to make a decision, my jacket which was in the room was searched and they discovered the recorder.

 

Why did they search your jacket? They stated the chair to walk out of the room when they noticed in an open pocket a device in my pocket, they took it out to check and discovered it was a recording device. My pocket wasnt open and they had no reason to search my jacket.

 

After a 4 hour adjournment, I was called in, asked if I was recording to which I said yes, they then adjourned the hearing to be heard by a new chair. No contact was made at all from the company for 12 days, when they invited me to a reconvened hearing with a new chair.

 

 

 

 

On review of the recording the chair and note taker states

• I wanna dismiss him, not just for the fact we need to be seen to support the manager here but who’s more likely to lie? Claimant!
  
• The wording for the final statement needs to be careful and measured
  
• Both had the opportunity to tell me events but there opposite stories
  
• There is no evidence for either side
  
• Asks HR for guidance as he knew I would appeal and didn’t want to be perceived as prejudice, he was advised keep it brief – no detail
  
• If this was a court of law the tribunal would air on his side, they would see it a bit more black and white, we would award loss of earning for that time, its a drop in the ocean its nothing, if it means we pay £10 - £20,000 to get rid of someone we don't want I think that's acceptable.
  
• What time did we adjourn, we need to give it the full time so he cant say we've rushed
  

Where did this come from - did you hear him say it, was it recorded, was it in the notes? This was said during adjournments and was discovered on review of the audio recording. It wasnt recorded in the notes. I could hear certain conversations during adjounrments but cant be sure i heard all the above.

 

There are further unacceptable and threatening comments made, which I have in a transcript. A copy of the recording and transcript were sent to the company solicitor.

 

In a letter from the company solicitor he writes “we accept there were statements made during the hearing which were unacceptable and we will investigate this” & “we shall ensure that this second disciplinary is undertaken properly in accordance with the companies disciplinary policy”. There was no way I felt any hearing would be fair based on the recording and their solicitors letter.

 

Why was the employer's solicitor writing directly to you? That's a little odd as you hadn't brought a claim. Were they acting as a clerk or merely trying to cover the company's back? I took representation immediately after the hearing until resignation. She wrote to the company to try and mediate, which they refused. That statement was in his letter back to my legal advisor.

 

They refused any mediation or meeting to resolve the matter, there compromise was reconvening the disciplinary with a new chair.

 

Do you have any proof of this? As above he stated along the lines of "as for your request that a meeting is held to come to an agreeable way forward, we do not feel this is necessary as the matters can be addressed at the reconvened hearing"

 

In short I went sick with depression & stress and was prescribed anti depressants. I was assessed as mentally fit enough to attend the hearing by their nurse, then doctor(over the phone in 20 minutes) when I disagreed with the nurse. I then visited my GP, who seeing my condition, weight loss, and state of mind wrote to the company advising I would not be in an mental state for any work related meeting for the foreseeable future. I emailed to 2 separate HR reps as well as HR asking for an urgent update, no one responded over 4 days, I took my GP's advise and resigned for the sake of my health.

 

Difficult. Without knowing more, I don't know if this is enough to amount to a "last straw" needed to bring a constructive dismissal claim. They could argue that if you aren't fit to attend a hearing in the foreseeable future, they may as well hold it in your absence because it can't drag on forever. However similarly, an ET Judge may find that it was unreasonable to refuse to postpone the hearing when you had evidence from your own GP - it's 50/50.

 

My vehicle and company assets were arranged to be collected by 2 managers from the company. The managers searched the van and wrote a full inventory of the stock (and stock only, not the £0000's of safety equipment on the van) being returned, to which I had to sign against. This has never been done before, any leavers vehicles are collected, no inventor is taken, no one has to sign for anything, but I did.

 

Possibly unsuprising if they had taken you through a disciplinary for theft/gross misconduct (what were the actual allegations, theft or failing to use PPE?) - but you could try and argue it was a further act of victmisation. Theft was never mentioned, the allegation soley was a breach of H&S. i have no record of theft, neither was any allegation ever raised in relation to theft during my period of employment. I accept this is an act of victimistion but im confused as this has to be linked to discrimination or a protected charateristic which i can see where the link comes from?

 

It was 5 weeks before I filed the ET1 form (10 Sept).

 

On 22 Dec the police turned up to arrest me as the company alleged I had stolen £1000 of stock, this had been reported to the Met police on 22 Sept (shortly after filing ET1 and over 6 weeks after resignation). In short my house was raided and I was taken for questioning. I explained the stock had been collected by colleagues in the 6 months I was off work, the police explained the company had explored this avenue and had confirmed that no one came to collect stock from me and took my submission to the company. I was taken back for requestioning as the officer wanted names from me to confirm if they had collected stock. I found text messages from two individuals asking (and being sent by my manager) to come to collect stock from me, these were provided as evidence to the police. The allegation was dropped by the police as there was no evidence as the individuals confirmed they had taken the stock.

 

It was obvious no one had been spoken to, neither did the company contact me to ask where the stock was, if they had I would have explained it had been taken by colleagues as I did to the police, this would have saved me the embarrassment and the police a lot of time.

 

Could be victimisation as a result of a protected act, as above. Agreed - but what protected act (criminal activities, miscariage of justice, illegal or unethical actions?)

 

I feel they were suspicious items were missing, which is why I had to sign the inventory taken. If they were suspicious then they had obviously conducted some sort of stock comparison at this point.

If they weren’t suspicious then why take an inventory when this isn’t normal procedure. It then took over 6 weeks to report this to the police which is an extremely excessive amount of time.

 

Yes, this could strengthen the victimisation claim - again, cross examine them on why they took 6 weeks to contact the police. Also, have they threatened legal action against you to recover the cost of the property - if not, why not? Police advised although they had dropped the case the respondent could stil "appeal" this. They did not do this or take any further action in relation tothis matter. No legal action was taken - im not sure why not? How would this be relevant them not taking action?

 

When I was a manager for the company, one of my staff left and within a couple of days of his van being returned (no inventory or sign out sheet was done) it came to light that £4000 of stock was missing. Security contacted the individual who advised he had it at home, it was arranged for collection and this was all done without the involvement of the police, within a matter of days of him leaving, very dissimilar to how my case was dealt with.

 

It was also only reported to the police after I pursued my ET claim and I feel that for what ever reason, (victimisation, discrimination) me pursuing this claim was the sole reason for them alleging theft. I firmly believe they expected the police to turn up, me have £1000 of stock in my house, arrest and charge me, report this to the ET and have the case thrown out......

 

Possibly and again this falls into the victimisation point.

 

As you will probably know the ET debarred me via ORDER from using my transcript or recording of “private deliberations”, as unsurprisingly the respondent wrote to the ET asking for any evidence in relation to the recording to be struck out...... and when he said “we shall ensure that this second disciplinary is undertaken properly in accordance with the companies disciplinary policy” - he didn't mean that the first disciplinary hadn't been, because the meeting hadn't been completed (ET3)

 

Covert recordings are often debarred from proceedings, but you should still be able to use a transcript, or at the very least your own version of the minutes! Order states "having regard to the judgement of the EAT in chairman and govenors of amwell view school v Doherty 2007 EJ Maciness orders that the claimant is debarred from referring to or otherwise making use of his recording and/or transcription of the disciplinary panels private deliberation at the disciplinary hearing on X/Y June

[tbbt1901]

Anyone?

[mariefab]

You're obviously in very good hands with Becky.

 

Can I ask on what date you withdrew the disability discrimination claim?

Was it before or after 22nd September?

 

I ask because if it was after 22nd September, your first ET1 may well qualify as the 'protected act' for your subsequent victimisation claim. (Hopefully becky can confirm this.)