Employment tribunal hearing coming up

[Lorenz]

Good afternoon everyone, Newby here scared by circumstances. 

 

I try to keep the story as short as possible, apologies if it's still too long.

 

I worked 15 years for a company and during the pandemic they decided to make all of us redundant. 

They appointed a staff representative without a vote to get questions and answers to all staff.

I disagreed with this, knowing this employee (you know what I mean). I caught the director dealing with redundancy (let's call him Bob) making false statements to my questions regarding some figures supplied by a third party organisation which in reality never supplied anything. I have all in writing. 

 

When I emailed my findings to him, he replied that he didn't have to answer my questions. From that point he took a dislike of me, rightly so as I had caught him lying. 

 

Then redundancy was stopped because another company took over and we were tupe transferred.

From that point this director and his managers have tried their best to make me resign without success.

One of the "bright" ones, let's call him John, refused to authorise my annual  leave despite me being on furlough.

 

When I asked the reason, he emailed me a statement to sign and return saying that I was taking annual leave and travelling abroad without his authorisation. I told him that I was not signing this entrapment and reported the facts to his superior, Bob. Bob dismissed my complaint saying that the manager didn't do that maliciously. 

 

Also, when we returned after furlough I witnessed John make sexual remarks to my colleague. My colleague put a grievance through and I was asked what had happened by the investigating manager. 

The grievance was dismissed and the investigating manager wrote that I was an unreliable witness because I didn't usually worked with this colleague, so he assumed I did not witness what had happened and had lied.

 

John was later sacked for serious sexual harassment to many other female staff. On appeal my colleague was told that her complaint had been proved correct as other people had heard from the staff room. No apology for me.

 

On several other occasions I was labelled as a liar, but always provided written evidence supporting me.

This applies to various things: annual leave entitlement, special leave, pay, concessionary use of the facilities, time sheets, etc.

 

The latest dispute came for my work-life balance arrangement which has been in place since 2015.

I work part time fixed shifts because I have 3 children and this has been agreed by a manager (let's call him Dave).

 

In November they decided to change my shifts and give them to a new employee who had not even started at the time. I explained that I couldn't do other shifts and as this new employee had not even started, I questioned why he was taking my shifts. Dave said that if I didn't like it I could resign but refused to put this in writing. 

 

When this new employee started, it transpired that he had not asked to do these shifts and he was flexible, not being bothered at all about his shifts. So between us we agreed to swap shifts so I could stay on my original roster. Not good enough. 

 

All of a sudden there was need for 2 people at certain time of the day. So our team sat down and worked out a roster suitable for everyone. I had to change the days I work to great inconvenience to my partner who also had to change shifts. The managers accepted this roster, possibly because by that time I had submitted a grievance and contacted acas for early reconciliation. 

 

The main 2 points of my case are:

1. Breach of tupe regulations: they've now invented a new policy which stops anyone taking more than 2 weeks leave at any one time. I have my original contract with attached terms and conditions of employment.  Regarding annual leave there's no mentioning of any such restrictions but when I pointed this out to them they said they can change policies anytime. In the grievance they have refused to accept the terms and conditions of employment as being covered by tupe. Bob also lied in 2 emails stating that the previous company had the same limit. I emailed the previous company and they sent me their policy: no restrictions. 

 

2. Discrimination on the ground of sex. I read of several employment tribunal cases in which the judges admitted that usually it is women who are more involved with the upbringing of children and that's why we work fixed shifts and part time.

 

3. Payment of unpaid leave.  I took 4 weeks leave at once but they paid only 2 despite me having 6 weeks available to take. They confirmed that there was no need for cover and in fact my shifts were not covered because August is our quietest period. But Bob said (this time in writing) "we don't pay any annual leave over 2 weeks to anyone for any reason". In his opinion this is "fair and consistent". "We won't stop you from going on holiday for longer than 2 weeks, but we won't pay you" But then he authorised one of his manager 8 weeks paid all in one go to go trekking abroad.

 

4. Several incidents which I consider harassment. For example, managers contacting me on rest days to do courses in my own time. Emails giving bad news as soon as I finish work and have 5 rest days. Example: once they decided to half my pay for the month because their clocking machine had broken down and they couldn't retrieve the data from it. Fortunately,  knowing their ways, I always take a picture of the screen when I clock in and out where there's date, time and confirmation of clocking. I emailed back immediately and they ignored me. I was emailing them twice a day and never got a reply. When I went to work the following week the manager (Mary?) said I had been bothering her with all those emails and she wasn't paying me because I had been absent on half of my shifts for a month. She got the shock of her life when I gave her all of the clocking pictures. At that point she went mad and started shouting to get out of the office which I did without saying a word. She never spoke or looked at me again.

 

The hearing is on 20th April and my husband who is used to keep his cool is representing me (my union has been useless in all of this, not even showing up at grievance). He's organised for us to watch another case so to have an idea on what to expect. He's also putting together all the evidence in chronological order so to send them to tribunal and respondent. 

 

I would appreciate any thoughts, tips and reference you might have.

 

Thank you and sorry for the very long post; I promise, this is just possibly half of what has been going on.

[Ethel Street]

Tagging @Emmzzi

 

@Lorenz  have you actually been dismissed? 

 

What remedy are you seeking at Tribunal?

 

It seems clear they want you out and whatever happens at Tribunal they will make your life difficult.  Have you explored a Settlement Agreement so that you can walk away ?

[Lorenz]

Hi, I have not been dismissed and I don't want out.

 

I have been there a long time and know all my customers.

 

I like my job and the managers don't interfere with my duties, but they have been trying to get rid of everyone being tupe transferred because we have higher salaries, more holidays and generally better contracts.

 

There's only 2 of us left from previous company,  all the others had enough and left, but I will not leave.

 

The days at work are fine, managers stay away from me because I caught many of them lying and I have a habit of doing everything in writing. 

 

For example, I am in charge of checking the fire extinguishers seal and expiry.

 

When I found 3 of them out of date, I mentioned it to the manager and then sent him an email.

 

He said that I didn't need to email him and then he moaned with my colleague that he was forced to spend money on recharging the extinguishers and his budget would be affected. 

 

The thing is, if there's an unannounced inspection by fire brigade or council, I would be in trouble and they would be quick at pointing the finger at me.

 

I am seeking confirmation that my t&c of employment must remain unaffected and payment for the 2 weeks leave they didn't pay.

 

Then the idea is to leave it to the judge if any compensation is due for the campaign of harassment I've been subjected to. 

 

Don't know if it makes any difference but I have on many occasions asked in writing for this to stop.

 

They either ignored me or brushed it off as "they didn't mean it".

How can someone call you a liar and not meaning it???

Then they don't reply when I send them proof that they are the liars.

[Emmzzi]

Hi,

 

unfortunately "is it annoying" is not the same as "is it illegal." What did you actually bring the ET claim for (that is what reason did you put on the form) and what hearing is this? Preliminary or something else? Have you been through ACAS conciliation?

 

1. holiday. In the absence of a written policy an employer can tell you to take holiday any time they like. I can't see a case here unless information is missing.

2. Shifts. Did you put in a flexible working request? If not, I am not sure you have exhausted internal procedures, so not really a case here.

3. Presumably you had paid leave at another time. As per 1, not illegal. Your choice to take 4 weeks at once. They could have refused it entirely.

4. You are not obliged to read emails or answer calls on your days off so this sounds like your choice and is not harassment. The error in clocking - *maybe* there is something there.

 

Perhaps more information would make your case seem more likely to succeed?

Edited March 13, 2023 by Emmzzi

[Lorenz]

Hi, I try to clarify.

In the form we put breach of tupe regulations and sex discrimination.  Will look at it again to double check. 

We went through acas but the company replied that they were not willing to negotiate. 

It's a full hearing which will last 3 hours with one judge sitting.

The company has failed to acknowledge the claim.

Now they've sent a communication to the tribunal claiming that they didn't know anything about the case, so I sent the tribunal their refusal to engage with acas as well as my several emails where I told them about the tribunal case and all the details.

 

Holidays: the terms and conditions of holiday requests and procedures are in my contract. They're adding the limitations in their own policy which shouldn't apply to me as my contractual terms prevail. Please tell me if I'm wrong.

 

Shifts: A few years ago I had with my manager a work- life balance agreement. Since then I've been working fixed shifts and they were told of this when I was tupe transferred. 

Unfortunately I can't find this piece of paper and they've refused to supply any documents after I submitted a subject access request.  2 separate complaints went to the ico which they've ignored.

 

I know they could've refused the leave altogether,  but they didn't because they didn't need the cover for the hours I wasn't there. I had lots of holiday that I accrued during the pandemic.

 

I know I'm not obliged to read emails when I'm off, but they use our personal email addresses for communication and can't not see what comes through the phone.  Please picture this: I worked 2 days and this manager was there both days. As soon as I finished my 2 weekly shifts and I'm out of the door, she sends me an email saying that I will be paid half. Payday was the following week, so the deadline to make any amendment at payroll was imminent. Many times they've contacted me on my days off with worrying things,  even though I told them in writing not to do so.

 

There are lots of other incidents of putting me down, mainly saying that I am a liar. Then I have to go and search for evidence to prove that I am not and waste a lot of time in doing so. When I prove to them unequivocally that they are the ones lying,  I don't even get a reply. Even in the grievance they refused to address the fact that I've been lied to many times. Their words were "this is out of scope". How can it be in a case of harassment?

 

Please let me know if you need more info, I appreciate your comments and help.

Thanks

[Emmzzi]

holidays - I'd need to see the exact wording in your contract. "How to book" is not the same as "what you are permitted to book" so the detail matters.

 

shifts - nothing documented - I assume you have a contract clause which may allow them to vary shifts? please check this. 

 

they do not need a reason to refuse leave, they just can

 

you could have informed them in writing no emails to your personal account would be read, then blocked the domain. Shaky ground there.

 

have you appealed against grievance outcomes - thereby exhausting internal processes?

have you submitted new grievances which would bring this into scope?

 

In refusing to acknowledge the claim - do you mean the court has sent documents, and they have not responded?

 

Sorry for all the questions. The details matter a lot!

 

Personally I'd be looking for a settlement agreement because toxic bosses are exhausting.

[Lorenz]

Thanks. 

I'll get the contract out and post it.. There's no mention of any limitation,  it just says that holidays must be approved by line manager and be granted accordingly to business needs. My point is that there was no business need to not pay the leave.

 

Shifts, true, I lost the work-life balance arrangement but my question to them was "did I just woke up one day and decided to go part time on fixed shifts without anyone's permission?" I asked them several times "why has your manager not said anything when I started doing fixed shifts? Isn't it reasonable to assume that we agreed on this rather then me doing it and not being challenged?" They refused to answer.

 

I can't block them because I need to read important things they send. They don't give us (lower staff) a work email, so we are forced to use our own. Same for telephone, although they don't call me because they know I want everything in writing. 

 

I appealed the grievance decision and the appeal was basically a repetition of the grievance. They refused to listen to any background and any incident older than 3 months. They only considered the change of shifts and said that it was sorted, no problem (for them).

They also said that I shouldn't try to sort things informally but submit a grievance as soon as anything goes wrong even though their own policy says otherwise. 

 

Yes, tribunal has sent them documents and they ignored it. They also ignored a letter saying that as they ignored the previous communication they would only be allowed to be present at the hearing and participate at judge discretion.  When the hearing was scheduled they contacted the tribunal saying that they had no knowledge of the claim whatsoever or any other communication. I provided evidence that once again they're lying. This was last week, so haven't heard back from tribunal. 

 

I asked for a settlement through acas. I proposed to withdraw any financial claim and only get back my holiday entitlement and fixed shifts. They refused.

 

I personally think that they thought I would backtrack and leave, but as I said, I'm not going anywhere. 

If they want me out they need to sack me.

 

Thanks for your help.

[Ethel Street]

@Lorenz Please read our Uplaod guide if you are going to post anything. Upload as once single PDF after covering up all information that would identify you.. Sounds like your emplyer might be able to identify you from the document even if you take your deatils out so best to remove anything that identifies them as well.

 

How to Upload Documents / Images as PDF on CAG - Guides and advice on using the forum - Consumer Action Group

 

[Lorenz]

Hi, sorry for the late reply,

 

I had a meeting at work and guess what? They want to change my shifts again, 3 months after they changed them. This time they said that I must work different days and different shifts every week.

This is clearly going towards constructive dismissal.

 

see attached pdf which is an extract from my original contract.  The bits I blanked are about bank holiday and other non relevant things.

 

Instead, I just re-read their own policy and it doesn't say that anything over 3 weeks will be unpaid.

 

Seems like they're going against their own policy by saying "the leave is authorised but we don't pay anyone over 3 weeks".

 

See here: 

Leave will be granted subject to the needs of the business and

can only be taken with the prior agreement of an appropriate

line manager.

 

Leave requests in excess of 3 continuous weeks require the

approval of the relevant MD.

 

Regard will be given to an individual’s personal circumstances, when considering requests of this nature, however, this will always be balanced against the needs of the business.

20230314_191552.PDF

[Emmzzi]

Thanks for posting.

 

In the absence of explicit contractual terms, this applies - if they told you that you could have 2 weeks, and you took four anyway - they are still within the law.

 

/assets/static/govuk-opengraph-image-dade2dad5775023b0568381c4c074b86318194edb36d3d68df721eea7deeac4b.png

Holiday entitlement: Booking time off - GOV.UK

WWW.GOV.UK

---

Holiday entitlement or annual leave - information for employers and workers on entitlement, calculating leave, taking leave, accruing leave and disputes

 

 

Employers can:

• tell their staff to take leave, for example bank holidays or Christmas
• restrict when leave can be taken, for example at certain busy periods

As regards sexism - you would need to show this happened BECAUSE you are female, not just that you happen to be female.

 

Note bullying is often insufficient grounds for a case, you need to show harassment. 

 

Being bullied: If you're treated unfairly at work - Acas

WWW.ACAS.ORG.UK

---

What counts as bullying and what you can do if you're being bullied at work.

 

[Lorenz]

Thanks for that,

 

but just to be clear, I asked for 4 weeks and they said it was ok because it's the quietest period, 

 

but they'll only pay 2 weeks based on a rule that it's not even on their own policy.

 

The MD wrote "We do not pay anyone taking longer than 2 weeks at once"

[Emmzzi]

Well, it's not a thing I have encountered before, so I could be wrong and I hope I am.

 

I don't think it's clear cut. My estimate falls more on the side of "no case to answer." But, I am not a judge.

[Lorenz]

Ok, thanks for your opinion,  good to hear different sides.

 

With regards to the discrimination, I've been looking at this case, very similar to mine:

 

Dobson+v+North+Cumbria+Integrated+Care+NHS+Foundation+Trust - Google Search

WWW.GOOGLE.COM

 

Just in case I wasn't clear: they changed my roster 3 months ago and it was a mess. 

 

I submitted a grievance which included this problem.

 

Then today they told me they're changing my roster again and want me to do shifts that I can't do.

 

they're trying to push me out, but similarly to last time, nobody wants to put their signature on anything. 

 

They want everything done verbally and instead I want everything in writing. 

 

I better explain why they do want me out (I think):

under my contract, I earn part time as much as a full time assistant manager.

 

They've managed to get rid of most of the staff with old contracts and replaced them with staff on minimum wage and young apprentices on even less money.

 I cost them too much, simple as that.

 

But I won't go, they'll have to sack me.

 

Sorry for venting.

[Emmzzi]

The claimant in that case had a formal flexible working agreement.

 

Put in a formal flexible working request, taking advice on the wording, so they can't keep changing your shifts. That gives you a proper audit trail for any future case you may bring.

 

Again, being awkward? is not illegal.

Edited March 14, 2023 by Emmzzi

[Lorenz]

I had a flexible working agreement 5 years ago but I lost that piece of paper. 

 

They claim that I lied and 5 years ago just started doing my fixed shifts without asking anyone (which is impossible).

 

When I was tuped they received a shift schedule from the previous company for all staff and they left my shifts as they were, until a few months ago,  when they realised that I was taking them to ET.

 

They've ignored my subject access request and they only contacted me when I complained to ico.

 

We're now at the third ico complaint and they're still ignoring everything. 

[Emmzzi]

If you want fixed shifts put in a formal request. Then they have to explain why you cannot have them; and then you have something that is actually actionable.

[Nicky Boy]

Lorenz,

 

Not sure how much you want to poke the hornet's nest, but you could force the issue of you employer ignoring your SAR request.

 

In the private parking companies forum, there have recently been a couple of succesful court claims issued against companies who failed in their statutory duty to respond to a SAR request.

 

@FTMDave could probably advise if you want to go down this route?

[Lorenz]

Hi Nicky Boy,

 

I was thinking of a way to force them to comply with the disclosure and complained to the ico twice, but they don't seem to care.

 

I would love to sue them for that, can you direct me to the threads you're referring to please?

 

I wouldn't know where to start because in county court you'll need to have suffered a financial loss to go down the small claim route if I understand it correctly. 

 

How would you go along with a data protection act breach?

Thanks

[Nicky Boy]

I've messaged FTMDave to ask him to look in on your thread.

 

 

[Nicky Boy]

Can only find this thread at the moment...

 

 

[Lorenz]

Thanks, I found the threads and also the successful Virgin thread.

Seems pretty forward.

I crack on with that route as well.

 

They're not providing the documents because they have my work-life balance agreement and that would be damning at ET.

 

I questioned many times how it would be possible for me to go part time and work fixed shifts without an agreement with a manager but they refused to admit that there's an agreement in place.

 

how did I end up working part time and on fixed shifts?

 

Did I just do it without telling anyone?

 

And even if this was possible,  my husband who has been involved with unions all of his life, said that it would constitute an accepted and established custom and practice that, as it's been going on for many years, it has become part of my contract of employment. 

 

 

Also, I questioned how it is possible that when I was tuped, they knew that I worked part time and they knew my fixed shifts.

 

Isn't it reasonable to think that my previous employer gave them this information?

 

BTW, apparently they don't have my agreement to the part time, but I do.

 

when I told them that as my contract that they hold says that I work 36 hours, they had to give me those hours, they said that my 18 hours were accepted and established custom and practice 

 

You couldn't make it up.

[Nicky Boy]

Been through an ET many years ago for my OH... Lost.

 

Faced similar obstacles with getting the employer to disclose stuff.

They had no problem disclosing made up stuff though.

Wish i knew about CAG then!

 

Anyway good luck.

[dx100uk]

You will need to send a letter of claim first.

 

Dx

[Ethel Street]

1 hour ago, Lorenz said:

I wouldn't know where to start because in county court you'll need to have suffered a financial loss to go down the small claim route if I understand it correctly. 

 No, the criteria small claims route [MCOL] is that you are claiming for a fixed amount of money and are not asking the judge to decide the amount of compensation you should be paid. Although that will typically mean you have suffered a financial loss that isn't the legal requirement. You can't make an MCOL claim for for compensation for an accident or injury though. So you can make an MCOL claim for failure to reply to DSAR as long as you specify in the claim the amount of money you want.

 

/assets/static/govuk-opengraph-image-dade2dad5775023b0568381c4c074b86318194edb36d3d68df721eea7deeac4b.png

MoneyClaim Online (MCOL) user guide - GOV.UK

WWW.GOV.UK

 

 

[Lorenz]

Thanks!

One question about ET.

Is it possible to get my manager to sit as a witness to be cross examined?

I read in the ET paperwork they sent me that the judge can order someone to appear as a witness.

Would that be possible if the witness works for the respondent?

As said, the only piece of paper that I've lost in all these years is the work-life balance agreement, but he's the one who sat down with me, agreed and signed it off.

However as part of my grievance he was not interviewed and at appeal he declared that he had not authorised the fixed shifts.

So basically he implied that I just showed up when it was convenient for me and he never challenged this 

Can I ask the tribunal to get him at the hearing?

I'm pretty sure he will spit the bean under pressure.