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constructive dissmissal - dh has a disciplinary on friday - help!

(27 Posts)
Tortington Wed 02-Sep-09 14:30:01

bit of back ground

dh worked for a building company that was took over by another building company - this company is a national company and as well as private work does large programmes of works for councils

out of over 100 people from the previous company only a handful are left.

dh as called in before xmas for a disciplinary - which wasn't oficial. dh had collated evidence to show them that they were wrong. I think they expect builing managers to take it lying down - but dh is new to this industry working his way up from tenant officer to one of three site managers in three years. he is degree educated and i think they think he is just a 'grunt'

he went in this am and was called to the offic e- a letter was waiting an oficial disciplinary out of the blue - no warning on friday.

he is busy collating information to show that is stats and his workload are better that the other two managers.

the crux of the matter is that dh ran the whole site before this new manager was appointed and he has seriously got it in for dh - who is polite, careful and knows his stuff. if a bad decision is made that will reflect on him - he will call it.

so - dh has got a copy of the HR policy and is going to have a read through

he is not a member of a union.

i would like him to have an advocate with him, but i don't know who he should ask.

everyone at the council to whom they are contracted thinks that dh is brilliant.

i told him to get them to send him some e-mails on the good work he has done

if dh had done anything wrong - i swear i would tell you

there is a manager gunning for him and i want to know the best thing to do

constructive dissmissal comes to mind

i told dh that he should ring acas tomorrow

i also told him that when he goes in the meeting with all his evidence he neds to tell them that as this is the second time he is feeling singled out and will be looking for advice on constructive dissmissal, as if this continues he would feel it workplace bullying as he isn't being treated on par with the other two managers.

in fact his work outshines them

he carried one of them becuase its his mate

the other one is in the pocket of the person who is disciplining dh - as it was a guy that he brought in specifically to do the job and he is a shower of shite.

dh is out in the car at 6am drives 160 miles per day to go to work and back gets back at 7 - 11pm depending on traffic

i am outraged that they are questioning his ability

anyway any advice please HR guru mumsnetters?

StillSquiffy Wed 02-Sep-09 14:56:31

Horrible horrible situation.

I would say first off that your dh should definately not mention anything about constructive dismissal - it would look bad in any subsequent discussions - as if your DH is raising the stakes, rather than reacting reasonably.

As it is a large company it should have decent policies - even if staff at local level ignore them. I would suggest that your DH prepares a formal 'grievance' citing all the evidence that he is being subjected to trumped-up disciplinaries. This should be very factual - no 'assumptions'or 'implications'. Because the grievance relates to local level management then it would be reaosnable for your DH to ask for his grievance to be heard at the regional mgmt level.

Does your DH's employment handbook mention grievance procedures?

Tortington Wed 02-Sep-09 15:09:05

bloody good advice there thanks

dont know about a handbook - he has a copy of the hr disciplinary policy

StillSquiffy Wed 02-Sep-09 15:17:10

The Govt issued new guidelines for raising grievances earlier this year - here are some details.

Tortington Wed 02-Sep-09 16:11:55

thaNKS dh just rang and i mentioned what you said.

the trouble with raising a formal grievance is that dh's manager is v. good friends ( golf parties etc) with the directors.

it looks like there is no recourse.

dh also phoned acas ans said that they said that its v. dificult to prove constructive dissmissal and to employ a lawyer!!

Kbear Wed 02-Sep-09 16:14:49

you can join a union online - you will then have access to their legal resources. DH did this recently - his firm doesn't have a union but lots of the blokes there joined a union of their own accord. He'll be in a minute and I'll ask him which union it is - will probably apply to your DH.

ilovemydogandmrobama Wed 02-Sep-09 16:22:04

Most trade unions have a period before one can use legal resources.

But it's in the ACAs Code of Conduct that he should be able to have representation, even if this means another employee.

if it's a large company, presumably there is a functioning H/R department?

I think though that he needs to focus on the actual charge or what he is being disciplined for, rather than putting together a lot of (possibly) irrelevant information. Am sure he's very productive, but he really needs to concentrate on the actual charge.

StillSquiffy Wed 02-Sep-09 16:56:15

If the bullying chap is mates with the directors then yes, that makes it far more difficult (although if this is true it works both ways - DH's manager might not want his own reputation questioned in case it affects his own relationship with the bosses).

Depending on how clubby it is, the best option might be to look at more compromising options (that just doesn't read correctly, does it?). By that I mean try to track the issue to the root cause - why is DH being ganged up on? Is he showing the other guy up, or do they just not get on? There could be more political stuff going on behind the scenes as well - the chap may be deliberately forcing the 'old' company staff out and this could be just another tool to get rid of the chaps who haven't left of their own accord.

Trying to find the root cause will be the key to identifying what you do next - asking for a switch to another site won't work for example if they want all the old people out, but might solve the problem if it is just a character clash....

I still think a grievance might be a route forward as it lays down a marker that might make them think twice before trumping up false disciplinaries. Without laying down a grievance at least, a lawyer might not have any ammunition to use at all (and in this kind of case it could get very expensive).

If the council think he is great, is it possible for your DH to leverage this goodwill? Could he work directly for the council as a project manager or similar if it is a long term job? Or, if he does have good contacts there, can he turn to them for advice? I have seen situations where the 'paying' party simply phones the directors of the contracting company and says "Sorry, but X (DH's manager) doesn't really float our boat. Can you please get him off site so that we just deal with Y (DH)" And it usually happens pretty sharpish. BUT that possibility depends on the council, who holds the purse strings, and how good (and long-term) the relationships are...

A more interesting option might be to see if your DH can force his manager to admit why he is doing this, and then take it from there. And the best way to do that is to very politely, calmly and confidently ask the manager during the meeting exactly that - ie: "Let's leave this stuff aside and speak confidentially. You know there is no basis to these complaints, just as I do, so why exactly do you have a problem with me? Let's look at that and see what we can do to fix the problems there". Chances are DH will just get bluster in return, but if the manager isn't up to dealing with this kind of approach he may just back off, because this kind of grown up talk could scare him a bit.

One of the less confrontational ways to address this is of course to look for another job.

Apologies for long rambling response.

Tortington Wed 02-Sep-09 19:31:13

thank you all for your advice, i will raise the thing about the grivance again with dh.

there is no charge it's just rubbish and in dh's words "schoolyard bullying"

its in his contract that he cant work for council for a year after leaving current employment.

thank you again

flowerybeanbag Thu 03-Sep-09 10:15:12

He needs to make sure he defends himself against whatever they are specifically disciplining him for. If it's performance, then all the information he is collating will be relevant.

If he gets a formal warning, he will need to appeal it on the basis of any procedural issues they did not follow, and on the basis that (presumably) accusations made are unfounded, and a warning was unreasonable.

He could then consider putting in a grievance about the disciplinary and other issues.

This isn't constructive dismissal yet, but depending on their handling of any appeal of a warning and of the grievance, it could then start to look that way.

However constructive dismissal is horrendously difficult to prove especially where there is not a clear breach of contract and I would advise him to consider that a last resort. It would be a lengthy and stressful process and would probably involve a certain amount of mudslinging as well.

Certainly to have a decent case he would need to demonstrate that he has made every attempt to resolve the issues internally first before feeling forced to resign.

Tortington Thu 03-Sep-09 11:39:15

thank you, he has collated all the evidence, stats, emails etc.

i am afraid that something will be brought up in the meeting that isn't mentioned on the letter.

so the letter says that he is being pulled for x,y. I am afraid that the bully manager will just 'pop' something out of the blue

as its not mentioned on the letter what would you suggest?

LuluMaman Thu 03-Sep-09 11:41:19

nothing useful to add, but hope it goes well for your DH, sounds like he is an exemplary employee.

flowerybeanbag Thu 03-Sep-09 11:42:02

If anything is raised in the meeting which he wasn't made aware of in the letter I would suggest he just says he was not made aware that the disciplinary was to discuss that issue, and as a result he has not had any opportunity to prepare any kind of defence of that issue.
Then when appealing the warning if one is given, that point should be made strongly. One of the key principles of disciplinaries is that the employee knows what concerns are being raised and is given every opportunity to defend himself.

Tortington Thu 03-Sep-09 11:46:17

thanks lulu.

Thank you flowery.

dh is very 'down' about the whole thing

he said that if he walks away with a job on friday he doesn't care what they do.

Kbear Sat 05-Sep-09 09:02:18

How did it go custy?

Tortington Sat 05-Sep-09 20:38:48

it went amazingly pants.

he got a written warning

i told him to appeal - hesaid i don't understand the politics of the place - if he appealed then it would go to the next senior manager - who would just sack him.

he is so dedicated and brilliant at his work, its seriously unfair and unjust.

he has spent today filling in application forms, he is very depressed about the whole thing

thank you so much for asking x

Kbear Sat 05-Sep-09 23:09:12

so sorry, that is just shit. Sometimes the politics of a place means you lose no matter if you're right or wrong or if the union is involved. If they want to make your life a misery they will. I hope things get sorted for him soon. Maybe CAB might have some advice for him.

StillSquiffy Sun 06-Sep-09 06:29:25

He has been there for more than 2 years (including the 'old' company)? And he has a proper employment contract etc? If so, then they cannot simply 'sack him'. Or rather, they can, but it would possibly be illegal and he could take them to a tribunal.

If a subsequent tribunal ruled in his favour then he would be entitled to compensation for the salary lost (reduced if he gets another job) and he would be entitled to either his old job back or further compensaiton for loss of job. Up to a total of around £65k.

But that would depend upon him winning his case (and only a specialist employment solicitor can advise). And any legal costs will not be recovered. And it is a very stressful route to go down (not helped by knowing that if DH doesn't find work then you have a long wait for a hearing, and if he does find work this reduces any compensation from the old firm).

Nearly all of UK law around unfair dismissal is built to protect people such as your DH, working for small orgs that seem to think they can hire and fire at will, so on the one hand it is crazy to take all that the firm is throwing at him (especially as these 'disciplinaries' could affect his futrue references). On the other hand, even though the law is on the side of the employees who are being treated unfairly, many people are put off this route because they have already been beaten to a pulp by their employers and it is a battle to get through it all.

Only you know your DH and whether it will ultimately be better to take this and move on (which is crushing in itself), or better to fight. If you do decide to fight then make sure that first you gather all the evidence, summarise it very succintly and seek the opinion of a good employment solicitor before taking your next move.
'Chambers guide' can give you details of the best rated emplyment solicitors for your area, but I think you are London/Home counties? If so, then IMO 'Bindmans' on the Gray's Inn road are the best big firm (and usually free for first session).

madameDefarge Sun 06-Sep-09 06:52:10

Custy,

Just off to pick up ds from airport, but will post later. They really can't sack him unless its for gross negligence...and they should have given him a named individual to hear the appeal.

It might be worth pointing out to dh that his response is primarily an emotional one, and he needs to think about this with a project management head on.

LoveBeingAMummy Sun 06-Sep-09 07:09:20

I understadn what he is saying re the polictics of the place however by not appealing he is acceptng their decision in a way.

LoveBeingAMummy Sun 06-Sep-09 07:09:57

(Sorry hit wrong button)

If they are trying to get him out anyway what harm can it do?

Tortington Sun 06-Sep-09 23:54:43

they took something that dh said to a contractor , twisted it and shaped it to fit their own agenda and told dh that he was guilty of gross misconduct.

the contractor is since mortified at the outcome of this 'off the cuff' comment.

but they want dh gone - thats the top and bottom of it.

dh did ask him for something in writing to confirm the correct version of events but this has not been forthcoming. the contractor is a large contractor who owrks on a number of sites and he doesn't want to fuck that up.

so they have him.

really interested in perhaps an initial meeting with an employment lawyer though.

becusae he is in a situation where to keep on working there is untenable, but he can't appeal against the written warning or make more waves becuase he still needs a reference and no future employer wants to employ a trouble maker.

madameDefarge Tue 08-Sep-09 16:42:46

Custy. sorry I didn't get back with anything useful. I've been a bit off colour, and I think others posters are right. Worth chatting to ACAS and an employment lawyer.

crossed fingers.

Lilyloo Tue 08-Sep-09 16:55:56

Custardo sorry to hear this , i did take one of my previous employers for constructive dismissal witht he help of a solicitor.
I did find another job first though for all the reasons you cite why your dh cannot remain where he is.
I won my case despite leaving my job for another one before i started proceedings against the company.

However finding new jobs easier said than done at the minute i guess sad

Tortington Tue 08-Sep-09 20:18:20

lilyloo - that is very heartening - did you file a grievance before you left?

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