Dismissed for Gross Misconduct after Discrimination & Victimisation

[Gopio]

Good morning all, 

 

1) I have worked for this employer, a public regulatory body, for more than 2 years. I had previously submitted equality complaints a few years prior in relation to discrimination on two occasions which were not upheld, nor the subsequent appeals. I ultimately ended up submitting an ET claim and withdrew due to signing a settlement. 

 

2) Six months lather, a complaint was raised against me in relation to harassment by a female colleague. I had also raised my own harassment-related complaint against the female colleague.

 

3) I do not believe my complaint was investigated thoroughly, fairly or impartially, that evidence was not reviewed properly and the female colleague was given preferential treatment in order not to uphold my complaint against her whether partially or fully. I believe by doing so I had been discriminated on the grounds of my sex, and that the investigators helped facilitate further discrimination and victimisation for those who were investigating her complaint against me. 

 

4) Ultimately, they had partially upheld her complaint against me (despite me providing numerous evidence in relation to her the credibility of her testimony and her overall allegations) in relation to one external anonymous email which they had deemed 'on the balance of probabilities' was sent by myself. All other allegations were not upheld against me, including further external anonymous emails which they could also not establish where it was sent from or by whom. There were numerous inaccuracies in the outcome report including misquotes by the author, stating things that I had never said etc. which is painting me in a negative light. 

 

5) I had submitted an appeal to my complaint, provided further evidence which I believe if it were to have been considered properly, would have helped in upholding my complaint against her. The evidence provided was such, that I believe if it were to have been provided by the female colleague in her complaint against me, then it would've been used against me to uphold my complaint. However, in my case they seem to have wilfully ignored the evidence.

 

6) During the process I highlighted my suspicions that the HR team are not abiding by the ACAS Code, do not have best practice guidelines and proper policies, procedures and training when it comes to investigating workplace grievances. I also made a protected disclosure as I believe that several personnel are discriminating and victimising me in breach of the Equality Act. I had also given indications that I will be submitting another protected act i.e. submitting another ET claim. 

 

7) I was invited to a disciplinary hearing and made my representations, methodically going through each of my points including the credibility of her allegations, the author's misquotes of myself, providing further evidence. However, after 'considering' my representations they still decided to summarily dismiss me for gross misconduct based on their view, that I had sent the external anonymous email which was of a harassing nature. The decision maker agreed with the investigator's outcome report and made no mention to the failings which I highlighted, nor of the female colleague's credibility and her version of events in relation to her other allegations of harassment which I had successfully defended with numerous evidence e.g. when she said something I provided evidence which shows that it was clearly a lie. 

 

8) I now have 5 working days to appeal the penalty and need to state my grounds.

 

9) I believe that right from the outset all individuals involved both in the investigation of my complaint as well as hers, have been colluding in a concerted effort to deliberately suppress the investigation and the outcome into my complaint, whilst upholding hers, in order to dismiss me from the organisation. Numerous HR individuals involved were also aware of me carrying out protected acts in previous years e.g. the other grievances/equality complaints, appeals and the ET claim which they settled with me. 

 

10) I have submitted yet another ET1, but an immediate aim is to successfully overturn the dismissal penalty, ideally revoke the penalty altogether, as I do not want to lose my job and because I know an ET hearing at this moment in time can take a year, maybe more...

 

11) I am also looking to submit a separate ET1 against the individual female colleague who had subjected me to harassment as I believe I had sufficient evidence for my claim, however the investigation was not conducted properly in order to accommodate their sinister ulterior motives. 

 

Any help or advice would be greatly appreciated particularly in relation to the disciplinary penalty appeal as I only have a few working days to do so. This is so mentally and emotionally draining but I'm trying my best to keep it together.

[unclebulgaria67]

My view on this, is that you are dealing with very complex issues and an Internet forum is not an appropriate place to hold any discussion. 

 

If you are a member of a Trade Union, they should be able to put you in touch with legal services. If you are not a Trade Union member, then do you have any legal expenses Insurance that covers employment disputes. Have you checked Home Insurance for optional legal cover you may have taken out ? Does it cover employment issues ?

 

Strongly advise you to obtain professional legal help on a formal basis and not to tackle this yourself. 

[Emmzzi]

This is way too detailed for me to advise on a forum. However I would think about

- the criteria is not "beyond reasonable doubt" but "balance of probabilities." 

- the ET will review "were the employers actions within a range of what is reasonable" 

 

That means that many appeals/ETs fail. They do not seek absolute truth; more "does this sound like it was possible? Would it be perverse to believe it happened?"

 

You sound worn out from the whole thing. Think about what would make you happiest in life. I can guarantee, it is not staying with this employer. But sometimes it's hard to see that when you are battle weary.

 

This employer is clearly not suited to you. I would be more focused on a neutral reference than re-employment. Wherever you end up next, please join the union right away.

Edited April 3, 2021 by Emmzzi

[unclebulgaria67]

And if you work for a public regulatory body, there is usually an employee assistance programme, where you can sometimes request for a independent investigation by someone outside of your department.  If your relationship has totally broken down with the Managers where you work, then in the public sector, there are often these additional assistance services available. 

 

What have you done to obtain help with the issues you have been facing ?

[Gopio]

Currently in relation to this email I see it is a matter of "he said vs she said" - my narrative has been consistent and unfaltering whereas her narrative is contradictory to the evidence I'd provided in my defence. Yet, although they didn't uphold the other allegations (which includes further external anonymous emails), they are sticking to their view that it was me who sent this particular email which they've dismissed me for.

 

During the course of investigation of my complaint, this email was provided by the female complainant as 'evidence' (only knew this after the outcome report was delivered) and in the outcome report the investigating officer expressed her opinion that this email was 'presumably sent by myself' - I was never questioned about this email, the (female) investigator provided no basis, justification or rationale as to why she had presumed this email was sent by myself but just stated it.

 

I cannot see how on the 'balance of probabilities' they are attributing this email to me. I have been denying it all along, I have been attacking the complainant's witness testimony and her credibility - if I've proven that the complainant is lying about the other allegations, then on the balance of probabilities is she not lying about this email being sent by myself? They have purposely suppressed my counter complaint and hadn't properly investigated my sexual harassment complaint.

 

I do not have legal insurance. I am a member of a Trade Union (but they're not that helpful). I am looking to seek legal advice. I like my job, I've had my heart set on building a career here, I do not have a problem with the organisation per se but this seems to be the actions of a handful of individual malignant employees.

[unclebulgaria67]

Go back to Trade Union who should have a legal helpline for you to call.

 

If you definitely did not send the email in question then why not swear a declaration under oath stating this. A Solicitors can help you with this, but speak to your Trade Union legal services first.

[Gopio]

I will look into the sworn affidavit. I'm assuming I can submit this as part of my disciplinary decision appeal?

 

Just trying to decipher subjective opinion vs objective fact - if the investigator states that they 'view the complainant's upset and distress as genuine' is that a subjective opinion or objective fact? I believe it's a subjective opinion. 

[honeybee13]

But aren't you likely to see things subjectively when they're applied to you?

 

I'm not following about this email. Have you seen a copy of it?

 

HB

[Gopio]

Sorry, I'm not sure what you mean by your first sentence? 

 

Prior to the investigation interview they had sent me a few email attachments which was discussed in the meeting. The other email in question was only showed to me two months after that meeting - this was the first time I saw this email. I'm not too sure as to why they didn't show me this email prior to my investigation meeting.

[unclebulgaria67]

Sometimes the person accused, is not the best person to represent themselves.

 

Your reputation and future are at stake here, therefore you must contact Solicitors that handle Employment cases for help with this. See if your Trade Union can help with providing a Solicitor.

 

 

 

 

 

 

[Gopio]

I will be talking to a solicitor. Can you tell me more about providing a sworn affidavit? This is the first time I've ever come across this, I didn't know one could be used in workplace situations? I've been trying to do some online research but there's hardly any mention of affidavits being used in like this within workplace situations such as investigations or disciplinaries and appeals etc. Not in the UK anyways, but there are some legal articles about it being used in workplace situations in US and Australia.

 

I need to provide my grounds for appeal and will be doing so mainly under (1) failure to consider evidence; (2) misunderstanding evidence and; (3) insufficient investigation of a point. I would also then provide new information including this affidavit in order to provide them with the ultimate comfort that I did not send that particular email.

[unclebulgaria67]

I have no knowledge of whether a sworn affidavit could be used in this situation.  But you appear to suggest that you have been accused of an act you have not committed.  If it were me, I would look into ways that I could demonstrate that I did not commit the act.   Other than a sworn affidavit in this situation, I am not sure how else I could do so.   Hopefully your Solicitors will be able to guide you on the best actions to take.

 

 

[honeybee13]

A lot seems to hinge on this particular email. Has the employer said why they think you sent it?

 

HB

[Gopio]

The more I contemplate it the more it seems that the sworn affidavit stating my denial is the way forward. I will be meeting with solicitors after the Bank Holiday.

 

It is just this particular email for which they've dismissed me for gross misconduct. The complainant alleged I sent it. I'm denying that I did - her word vs my word. I'd provided evidence which contradicts all of her other allegations and certain statements she's made, this should further weaken her allegations and the credibility of her witness statement.

 

Their rationale as to why they think, 'on the balance of probabilities', that I sent it is because of essentially the following:

 

1) the female investigator believes the female complainant's 'upset and distress' at receiving this email as 'genuine'.

 

2) that the email was sent a few hours after a minor altercation/argument in the office.

 

3) that when they questioned me (two months after my meeting with them) on whether I sent the email that my answer was 'evasive'. 

 

4) the complainant's witness testimony and that they do not think it is 'credible' that either herself or someone else had sent it.

 

They had attempted to trace the source of the email but could not do so.

[eddie1234567]

Hi, I've not seeing anything here in relation headers etc of the e-mail.

 

As much as folks like to think that "anonymous" e-mail is untraceable (and at the risk of teaching granny to suck eggs) , it is traceable back to the originating e-mail provider, at a minimum. From there, that provider would possibly be able to tell which connection and user it came from. This e-mail may fall under the Computer misuse act as well as the Malicious Communications act

 

Of course, for all the nerds (of which I am one of you), with the right tools all of the above can be muddied and hidden. The question is, will the other person be capable or knowledgeable enough to know this.

 

The main point to make is to ask for the original e-mail including all  headers in-case this can be used to trace, and possibly identify, the originator.

 

edit: police may also be interested in this e-mail from the misuse/malicious perspective above.

edit2: Just a thought, very tenuous one which I will leave others to comment on as to whether good or bad,  if you do decide to get the whole e-mail, including headers. If they don't give it to you, remember they are saying you did send it, therefore by their words it is your data.... Otherwise they are acknowledging it is not yours, and therefore did not send it.

 

5 hours ago, Gopio said:

They had attempted to trace the source of the email but could not do so.

Just saw this bit, soz.

 

can they provide proof of what the did to trace it. Did IT provide the full headers, where any decent IT guy (muddying previously mentioned not at play of course) would be able to trace back to the originating mail servers etc.

 

Edited April 4, 2021 by eddie1234567

[Emmzzi]

Having read all of your points my main advice is "stick to the knitting." The knitting looks like this.

 

a) you are a decent person who would not wish to upset anyone. DO NOT GIVE PAGES OF EXAMPLES. 

b) you are deeply sorry for your part in the altercations which you admit took place; this is not the person you wish to be

c) you did not send the email on which the case seems to rest and believe there has been insufficient investigation - IP addresses etc - this is too tenuous evidence on which to end  a persons career; 

d) the action you would like to happen as a result of the appeal is further investigation

 

Leave all the other minor points out of it; it's pedantic and blurs your main message. I also advise against an affidavit which has no more weight than your own statement; you just said it to a lawyer instead of the investigating officer. No added value. Makes you look guilty. Innocent people don't do that kind of thing.

 

Stick to the knitting. Guilty people obfuscate with detail; innocents make their truth know in simple terms.

 

Do NOT raise the gender of the investigator as you have here. That comes off as misogynistic. It's not going to help at all.

Edited April 4, 2021 by Emmzzi

[eddie1234567]

59 minutes ago, Emmzzi said:

 

c) you did not send the email on which the case seems to rest and believe there has been insufficient investigation - IP addresses etc - this is too tenuous evidence on which to end  a persons career; 

 

 

As Emmzzi says as well as you are disputing this message and no doubt they won't know what a "message structure" involves (unless they sought knowledgeable advice) and as there is just as much chance of the other party sending it to be vindictive, what you need from the mail servers, the original traffic (even if they have to go back to the server backups) is the RAW MESSAGE.

 

If they just use Outlook or Android or Apple Mail then these full headers may not be easily/readily available and if they did it themselves it may not show the full path. That is why you need to extract the Full RAW MESSAGE and the MAIL SERVERS logs, which will give other info pertaining to the specific message

Edited April 4, 2021 by eddie1234567

[Gopio]

In relation to the sworn affidavit, my understanding is that this is a legal oath to be taken as 100% truth unless proved otherwise and that it carries significant weight compared to any other ordinary statement? 

 

Everything I've said to them, they're not believing me so and just giving their own perverse justifications based on their seriously flawed investigation - if I submit a sworn affidavit, how can they then say that their approach and reasoning based on 'the balance of probabilities' is stronger then my denial based on a sworn oath? 

Yes, I will have to say it to a solicitor in order to take the oath but it's purpose here is to submit it as new information/evidence for my appeal in order that this decision to dismiss is revoked.

 

The reason why I wish to go down the sworn affidavit route is because all of my other statements and arguments made in this situation is just being met with disbelief and not giving them the reassurance - so let me give them the maximum reassurance and comfort under oath. If they wish to disbelieve my affidavit, a legal sworn statement, then they would have to come out better than 'balance of probabilities' shouldn't they?

 

The way I see it ultimately is this - they have a problem with my denial of this allegation even with everything I've said so far, and believe that my answer to whether I'd sent the email or not was 'evasive', okay so let me do you a favour, here's a sworn affidavit under legal oath my denial statement is now legally true unless proven (beyond reasonable doubt I assume?) otherwise.

 

If they still disregard that and stick to their decision that I am guilty of this misconduct and their decision to dismiss, I could then submit this sworn affidavit as evidence in an Employment Tribunal could I not?

 

They stated in the outcome report that the investigating officer enlisted the help of the organisation's cyber security team and they were unable to find the source of the email. They hadn't produced the email with headers etc. The organisation uses Outlook and the email came from a free web-based email company. 

 

The reason why I wanted to raise the gender was not because of misogynistic reasons but to try and illustrate my belief that could it be that the female investigator was prejudiced and biased in the course of investigating a harassment complaint raised by another female against a male? Perhaps because the investigator had experienced harassment in her own personal and professional life. 

 

Please also bear in mind that I am someone who had taken this organisation to an Employment Tribunal before and then withdrew after settling. I am also someone that recently has queried their internal HR investigation processes, manuals, guides, training for those carrying out investigations etc. I've also made a protected disclosure in relation to HR and non-HR personnel who I sincerely believe are breaching the Equality Act by discriminating and victimising. I am exposing certain senior people in this organisation and calling out their BS so unless I'm being seriously paranoid I believe that all of them are colluding to cover up their stink and get rid of me.

 

 

Furthermore, I'd submitted a FOIA request asking for % of harassment complaints brought and upheld/not upheld in different categories e.g. male vs female, BAME vs non-BAME, also requesting data on their HR team in relation to diversity (gender and race), and finally the publication dates of all Internal Audits of the HR function since the organisation's inception.

 

It's been way over the 20 working days deadline in which they should have complied by.

Chased them up.

No response.

[Emmzzi]

Well, you know best. Good luck!

[Gopio]

Please, don't be like that? I'm just laying out my thoughts and perspective for yours and other peoples' expertise and comments. I'm not being rude or arrogant. I am majorly depressed and anxious and haven't been eating and sleeping properly for several days now. But thank you for all your input so far anyways, don't think I am not reading them or taking them into account.

[Emmzzi]

There comes a point in some employment relationships where the effort to manage the employees relationship with the organisation outweighs the risk of a less than stellar dismissal process and possible ET. 
 

Your FOI requests are, I would suggest, the tipping point. Your multiple requests suggest this has simply become too much like hard work for the organisation and they will take their chances on a dismissal.

 

I suspect you will not find the justice you seek. They are making a calculation of how much management time you take up, and the cost of that, versus how easy it is to replace you.

 

Your best hope at appeal is to stick to the knitting. An affidavit is used in a court of law, and this ain’t that. The same rules do not apply. The employer is not expected to be Rumpole.

 

I would still be trying to get a neutral reference and exiting. See if your lawyer has a different opinion. But I think there have simply been too many bones of contention here for it to carry on being viable for the employer, to keep expending this much time on you. 

 

again, good luck to you. I hope that, armed with a full and detailed set of facts, your lawyer has a more hopeful opinion. But if not - let it go. The best revenge is living well. Your health is not worth this battle. Other avenues await. Imagine, six months hence, using your skills in a job you love, where you have no battles to fight. That feels more worthwhile to me.

[Gopio]

I understand where you're coming from. My battle isn't with the organisation, it's with certain malignant employees within that organisation that are carrying out unethical and illegal acts i.e. discrimination and victimisation under the Equality Act. I was getting along just fine before this complaint was raised against me (the very first ever in my whole working life). It was a certain number of malicious individuals who have taken full advantage and opportunity of that, not the organisation.

 

These lot had it planned and prejudge right from the outset. The FOIA request and me questioning their internal workings etc came after the outcome of my investigation and the complainant's investigation was delivered. Up until then I was being civil, providing my evidence and full cooperation. 

 

But nevertheless, thank you for your advice and input.

[Manxman in exile]

Just follow Emmzzi's advice in #16 and #21.

 

I fear that trying to do anything else willend in greater disappointment for you.

[Gopio]

Thank you for your comment. I'm starting to sway away from submitting the sworn affidavit but will have a chat with a solicitor and if he advises against it then that's that.

 

So bring out reasons why I think the outcome was wrong, ask for raw message and server logs of the email, state that it is too tenuous to end my livelihood and career based on an anonymous external email which I did not send, provide any new evidence and information and evidence which I do not think was considered properly as part of the original investigation, ask for a reinvestigation.

 

Do I / can I mention my genuine and sincere belief that I had been discriminated and victimised as part of both investigations? I had made a protected disclosure on this basis and this is now known. 

 

Also, it I should be stating why I think the decision is wrong or unfair - can I get some input on what's the difference? Can it not be wrong and unfair at the same time? I know there's meant to be wrongful dismissal and unfair dismissal.

 

Do I say anything about the credibility of the complainant's testimony for my defence?

 

Thank you all for your help. I'm just literally pacing up and down my living room and kitchen in the dark, smoking ciggs and then intermittently checking my phone for updated comments. I do suffer from general anxiety disorder.

 

 

 

 

[unclebulgaria67]

Have you looked at whether there is an external employee assistance number. If you work in the public sector, there is normally an external employee assistance number, where if you find yourself in the situation you describe, you can call asking for independent support. They may be able to request for an independent HR Manager from another department to look into how the case has been handled.