Help! ACAS conciliation before tribunal - anyone able to help?

[KavvLar]

I've posted before about DH being sacked - he lost his job suddenly after years of service for gross misconduct. Without going into detail he interrogated a system in a way that was previously viewed as acceptable when training (electoral roll). He was dismissed after investigation.

He has appealed but the decision was upheld. He is now putting forward a case for conciliation before attempting employment tribunal.

I will add that this has been devastating for us - two small DC who are going without, our mortgage and bills going late and in some cases unpaid, and incurring masses of debt and favours from friends.

His union rep is nervous about making big demands and thinks he should just ask for a clean reference. At the moment I don't know what to advise him. I work there too so I know the practices and what he did was not unusual nor should he have been dismissed for it. The case was decided on the balance of probability but there are a lot of inconsistencies in the investigation paperwork.

With that in mind I think if he is maintaining he should not have been dismissed then he should be asking for effective reinstatement and pay from when he was fired until now, so he can resign and look for another job with a clean reference. Surely? But I don't know how these things go, is it more prudent to simply ask for a clean reference as they might give it to him just to go away?

I'd really appreciate any insight into how this process works and how might be best to proceed.

[KavvLar]

Hopeful bump for the early evening crowd

[daisychain01]

Hi Kavvlar, I remember your other thread.

Has your DH sought legal advice yet? I think you may have used the Legal Helpline from your Home Insurance, right? I cannot emphasise it enough, at this point if you are going to take the case to Tribunal (for which the preemptive step is the 4 week ACAS Early Conciliation process) you need to build a solid case.

Your DH needs to be clear - is he only asking his employer for a bland reference that he can use to seek new employment, or is he intending to lodge a Tribunal Action for unfair dismissal? He can't enter the ACAS Early Conciliation if he is undecided.

Sorry to be blunt but I don't think you are qualified to advise him. You need to present all the facts (including the inconsistencies surrounding the Investigation) in front of an employment solicitor and ask for their expert opinion.

If he only needs a bland reference "Mr Kavvlar worked here from xxx date to y date" on company letterhead, and isn't going to make a monetary claim, the request doesn't need that to go through Early Conciliation necessarily. His Union Rep could give some guidance, maybe they could request it, then he can move forward and seek new employment.

If I were him, I'd take his Union Rep's advice. It sounds unadvisable to enter into a confrontation in Tribunal for a case that is more than likely to go against him and will cost you significant amounts of money when you are already in financial difficulty. Any award is more likely to be swallowed up by legal costs.

[KavvLar]

@daisychain01 thanks for replying.

We sought legal advice and an employment solicitor helped him to draft the appeal. The appeal manager didn't really address all the points and just basically came back and said 'it was within the range of possible outcomes to dismiss so the decision is upheld'.

He will now get legal representation from the union solicitors so thankfully it should not incur costs other than union subs. I'm a bit confused with the process though. He has given the union solicitors all the paperwork and he has lodged the thing with ACAS to stop the clock. The solicitors don't seem to have said what they think his chances are nor if they intend to support him, it's all going through the union rep and another guy that liaises with the solicitors.

They are both asking DH to set out what outcomes he wants. Initially DH set out his personal priorities which went like this:

Priority 1. Clean reference. If nothing else he needs this as he's precluded from applying for large areas of work as they just won't touch him.

Priority 2. Some money - like wages from when he was let go to now, or some kind of paid notice period at least.

Priority 3. Clearing his name.

Priority 4. An apology and some kind of redress for putting him /us through this.

Obviously he still thinks he was wrongfully dismissed but he can also see that he can't go back to work there now. Seems to me we need to know what the employment solicitors think don't we?

The go between guy says DH should simply represent what he wants from the process to ACAS. The union chap says he thinks he should ask for a clean reference but any of the other priorities listed above are likely to be 'poles apart from the organisation'.

[daisychain01]

Seems to me we need to know what the employment solicitors think don't we?

Yes, thats right. It doesn't sound like the Union solicitor is being clear enough about how realistic your DH is in some of his expectations.

Priority 1 - this is realistic, there is every chance the employers can be persuaded to give a reasonable, basic reference esp if your DH has worked there a long time and his service history was good apart from this latest situation. Given that Tribunal focuses on loss of earnings, they will want to show they have at least cooperated in him getting alternative employment

Priority 2- Money. think about what I said above. You don't get any of the legal expenses and court costs back, so how viable is it in the long run, based on the maximum award he is likely to receive. His solicitor can help advise on this.

Priority 3 - clearing his name. The reference is probably about as close to Clearing his name as he is likely to get. Presumably this priority is about him being able to get another job?

Priority 4 - i would forget about any apology, realistically. Redress is only likely if he takes them to Tribunal and wins. For that he needs a solicitor to tell him realistically what his chances of success are based on what he actually did, what the company policy states and how badly he contravened that policy from the employers perspective. Im guessing the solicitor could do some sort of "risk assessment" from the employer's perspective regarding potential repercussions and implications of what he did in the context of breach of data privacy/DPA if I remember the details correctly. This would give some indication of how serious what he did was in real terms, and therefore whether the employers action was justifiable. Ask the solicitor specifically about precedent, as you mentioned "other employees did what DH did" - is that a valid defence? Kind of "two wrongs don't make a right" iyswim