Timescales re Appeal over Christmas

[Heroine]

I am looking at timescales on a case, and the employer is claiming that because there is a customary holiday over christmas (the whole Christmas week) that irrespective of whether staff working on the case were in (they claim they were), these days should NOT be counted as working days in the timescale.

I know that tribunal times are calendar months irrespective of holidays, but does the same relate to internal procedures?

The only reason I ask is on two ways of working this out, the employer is out of time on holding an appeal..

• If working days (anything that isn't a bank holiday) are counted, and 5 working days are counted as a week - out of time

• If calendar weeks are counted - out of time

• If Working days including the customary AND statutory days are included, and five working days are used to represent one working week, the employer has one week left.

This is the deadline to holding the appeal - so would any notice of the appeal now be too short and unreasonable?

That is my view, but I am not sure how an ET would regard this - if I were on the employer side, I would advise that an ET would let us be reasonable within a few days or so.. would I be right??

What does the employer procedure actually say?

It says that (if granted) 'an appeal will be held within three weeks (unless extended by mutual agreement)'.

(don't get me started on the vagueness of this employer's policies - this case is about the appropriateness of use of the internet under the 'common sense' policy governing in work and in breaktime use... when there is no 'common-sense policy' written down, and 'what is appropriate or not is decided by the employer on a case-by-case basis' (ie there are no guidelines that the employee could have operated within in any case!!)

it sounds vague to me too, but given that most people accept that things virtually stop over xmas/new year, I think it would be unreasonable to declare the appeal out of time and slap in an ET claim.

what have you got to lose by co-operating and having an appeal hearing?

Is the employer now trying to arrange an appeal and the employee is saying 'tough you're out of time'? In which case that doesn't sound very reasonable of the employee tbh.

If the employer has slipped a bit in terms of timing but is otherwise trying to follow it's procedure and the employee is saying because of a few days delay he/she will not allow the employer the opportunity to hear the appeal and reconsider the previous outcome and is instead going to jump straight to a tribunal that doesn't sound either reasonable or indeed sensible. If it had been weeks and weeks and employee had made every attempt to get their appeal heard, then fine, but if it's a question of a technicality of a few days which could be because of Christmas, that's different.

Did the employer make any attempt to explain the delay?

Hello, thanks,

The employee is not saying that - yet.. the employer has played some games over trying to claim that the appeal documents (submitted before christmas) were only recieved after christmas - so we are just trying to get an understanding of what they might think they are doing v what they are doing.

The employer has not been in contact at all to explain any delay or request extension of timescales since rebuttal of the out of time claim re submission of appeal documents.

Its just that they seem to be playing hard on timescales and trying to infer 'out of time' unreasonably, and I want to know when to start recording reasonable requests from the employee.

The employee has already formally expressed a wish that timescales are sensibly managed so I think that we are OK in terms of reasonableness.

My eye is on putting pressure on if we have not heard back re decision to appeal by Friday this week (i.e. day 14 by statutory days only, day 17 by statutory and customary timescale), as I think that it would be unreasonable for the employer to have made no contact at all before then. Would I be wildly wrong in assuming that?

I am thinking of playing the timescale game back at them because

1. they made it clear they were engineering timescales in the first place irrespective of reasonable submission of evidence to the employee - (we believe this was to confuse the deadline for ET (i.e. strict calendar months) with the appeals process)
2. Some technical evidence was not available at the disciplinary hearing, and if this is made available, we are not sure if it will help or hinder the appeal - and analysis takes a couple of weeks which will take us close to ET deadline (which would be in 3 weeks from now!).

Should the employee be more 'reasonable' but risk jeopardising the ET process??

Sorry forgot to come back to this.

No I don't think you'd be wrong to assume it would be unreasonable of the employer to have made no contact by Friday. I assume you've formally asked for the missing evidence already.

The employee does need to be reasonable but obviously as long as the (grievance?) was raised early enough to give 'reasonable' time to deal with it prior to the ET deadline, that would be ok.

I'd be inclined to write formally specifying a deadline by when you expect the appeal hearing to be held otherwise you will consider you have fulfilled your obligations in terms of making every effort to resolve the issue internally and will consider you are in a position to take the issue to the ET.

Thanks - the situation is this:

1. August 2009 - Grievance raised by employee - no action by employer
2. May 2010 - Senior member of staff berates employee in common room social space, in front of colleagues that she needs to behave in the right way to get promoted or she's out of here.
3. Employee raises concern about above asking for advice and management support - none given.
4. May 2010 (late) senior employee above raises complaint about employee's use of the internet in personal time, including some wild allegations about S&M (with no evidence).
5. early June 2010 - Grievance raised by employee again (similar issues, but stripped down to two main concerns - training and annual appraisal being mismanaged)
6. 7th june Response from manager in which he admits that he has put no system in place to manage annual review, that he did not do annual reviews for his other staff, and that he wrote a report on the outcomes of annual review without reading any annual review documents.
7. 8th June - manager uses complaint re s&M etc to start the processes needed to launch a fishing expedition to find evidence against the employee
8. Mid June (after the two weeks for response to grievance) employee contacts HR to discuss escalating the grievance raised in early June
9. Immediately after 9 above - investigation launched fully

10. employee requests that grievances are heard before disciplinary (in line with policy) 11. employer claims that no grievances have been submitted 12. disciplinary hearing goes ahead - obviously falsified evidence is submitted 13. hearing finds against employee stating within it that it did not have the time to read submitted written evidence 14. new evidence presented at hearing - this evidence has been prepared before the hearing by HR, but not presented to employee - evidence is soley a statement by a member of staff, no evidence, no witness, ni investigation - this 'evidence' is about an incident in 2003 (7 years before the hearing!) when the employee was a temp (i.e not even employed by the employer). 15. appeal request submitted emphasising the dismissal of grievances by claiming they have not been submitted, along with evidence that they have been submitted. 16. I am asked for my opinion!!

Its complex, and that worries me because of several issues:

1. if the employer has not followed its own grievance procedures does that mean they breached the employment contract first
2. If so should this be in civil court??
3. Is this really a discrimination or victimisation case? This long list of aggressive actions by the employer is against a member of staff who is a the only male employee left in the team. the team was 50% male/female when this particular manager started and now the employee has been dismissed, is all female.
4. If it is a discrimination pattern how can this be brought in whilst still defending the employee against the allegations as they stand??

I think this is really beyond normal practice stuff because it looks very much like the evidence against the employee is pretty much the final straw in a lengthy action designed to constructively dismiss, but the employee has hung in there...

I know it is v complex which i why secrretly I was hoping for an out of time to give me more time to get my head together.

Should I/the employee really be consulting a civil expert in employment law?

Heroine - can I ask what your involvement is in this please because this will have a bearing on my advice?

I am acting as a personal friend, but as one who has experience working as an adviser typically to the union side in employee-union disputes

Gotcha. Ok, if it were my friend I would be wanting to get her out of there asap with a decent reference and a new job somewhere else. If the likelihood of her finding another job quickly is small I would also be looking for a settlement to cover the period of time it would take to find another job, but tbh the stress of that I'd avoid if I could. She is probably feeling incredibly worn down and lacking in confidence and staying there is only going to make that worse. From what you've said in your last post but one it does look like she's not even remotely happy and the timescale suggests this is a problem that is not going to go away.

Right, now this next bit is from my HR experience and is tough to swallow but important to know I think. I also think it might be worth talking to an employment lawyer (I'm not a lawyer) to confirm the below or they might tell her something different based on the specifics of her case. Many will give the first half hour free.

1. Anything that has happened at any point prior to 3 months ago is unlikely to be of interest to a tribunal so dwelling on things from 2009 or earlier 2010 is not going to help your case (but absolutely understand why it matters to you and your friend).

1. I am unclear as to what kind of discrimination, if any, might be happening here. You refer to a colleague as she and then say the employee is the only male employee left?? Regardless of that, proving discrimination is very, very difficult.

1. A civil court is unlikely to have much interest in a case like this - this is what the tribunal service is for.

1. Failure to follow grievance procedures has not been enough to go to Tribunal with since the change in April 2009. Blatant failure to follow their own grievance procedure can lead a tribunal to increase an award by up to 25% but by failing to be reasonable a reward can be reduced by up to 25%. So I wouldn't quibble about number of days and would look at ACAS timescale which is (I think from memory) 4 weeks but I wouldn't rely on this as tribunals are unpredictable things.

1. Realistically, even if an employer is found by a tribunal to have forced an employee out (constructive dismissal) compensation is limited to an amount similar to the anticipated loss. This is affected by various factors not limited to age, working pattern, industry, current economic situation. Where an employer has dismissed someone (unfair dismissal) the award principle is the same.

So, what to do? Continue to cooperate with the employer (galling as that is). Put in another grievance that this one is not being dealt with in timescale (so it's documented). I am unclear what happened re disciplinary - what was the outcome and did employee appeal? Get your friend out of there and into a new job.

If you can tell me a little more around those points I can suggest ways to manage the exit. Will check back tomorrow.

hello, actually my friend is a guy - I was using 'she' to try to avoid it being identifiable to the employer - then changed my mind and didn't edit that first point. He was the 'last man standing' so to speak for the last two years during which there have been annual attempts to make noises about sacking - eg dumping an impossible task, then when he complained, saying 'you are refusing a direct and lawful instruction by management' (i.e. a misconduct issue that could be gross) or the making of a suite of allegations of underperformance without evidence - on both of these occasions he resisted with written responses and evidence and they were dropped without going anywhere formal.

I think he has been seriously damaged by this in that his confidence in looking for new work has been damaged, and he says things like 'why bother, I'll be starting at the bottom and have to convince another manager, who'll keep me down' etc, and I think it will be psychologically beneficial to him to fight this to the end (not to mention that he has used it as a springboard to take a short course in employment law himself). The disciplinary found against him on five separate counts some of which are totally illogical, and the hearing relied on exaggerated and false evidence provided by the investigating officer. The appeal referred to here is the appeal agains the disciplinary hearing. The employer is claiming that although the grievances were written complaints sent to the right person, they are also not official grievances, which is very frustrating.

I agree with Katie's points.

It's not clear exactly what legal claim your friend is looking to possibly make. You refer to a very short timescale before ET deadline, but what would the claim actually be?

It sounds more as though it's a constructive dismissal thing in which case surely your friend is nowhere near the time limit as he has not yet resigned?

If it's a discrimination thing on what basis do you think this poor treatment is because of his gender?

Either way, with a complicated case like this and with the possibility of a constructive dismissal/sex discrimination claim, without casting aspersions on your own knowledge, this is one for an employment lawyer.

Sorry this seems unlear:

1. Employee has been dismissed.
2. Claim would currently be Unfair Dismissal
3. Pattern of employer behaviour shows that essentially this dismissal is the final and most aggressive act in a pattern of bullying and harassment, including contract breaches that show evidence of a will to constructively dismiss
4. The gender issue is based on the fact that a) in 2005 the employee was pressured by the manager raising this action to sexually dscriminate against a male interviewee soley because that candidate was 'an 18 year old boy and 18 year old boys are unreliable' b) Two people in similar roles who got pay rises (one twice) and grade re-evaluations supported by this manager are female - my friend had ALL grade applications he put in blocked by this manager going to the meetings and presenting an opposite case c) the admin staff three years ago (when the manager raising this action started) were two male finance staff, my friend's role, two female admin staff, one senior female admin. d) At every recruitment opportunity or manoevering of staff, including into roles my friend is qualified for and had been identified as suitable for at appraisal, female candidates were chosen. Often posts were not advertised in order to achieve this. e) Now the admin staff are exclusively female and the manager is male. f) His last role was one where he was the only male heading a female admin staff. g) Other female staff in comparable positions have been given opportunities to train and develop - my friend's have been blocked. h) Out of 8 new roles at different levels of administration, all appointees have been female. i) This manager takes some of these for lunch meetings regularly - my friend has never been taken for lunch or even coffee by this manager - clear favouritism. j) This manager has a stated preference for managing women.

On top of this, the employer itself has moved from being 54% female to 64% female in administration in just three years. The employer has circa 10,000 employees

I appreciate the need to get an employment lawyer in, but I am concerned that as he has been dismissed, even if there is a demonstrable pattern of discrimination and/or victimisation can he do anything about it other than throw it around at an appeal?

Hi I'm back.

Ok, see he's been dismissed so yes, he needs to get some proper legal advice asap. I also read your other post about needing to fight it and I think the important thing to consider here is what counts as a victory?

From what you've put in your last post I really think there is very little/no evidence to show sex discrimination. Some of this stuff goes back years and is very subjective. That doesn't mean he hasn't been treated horribily (he may have been, we weren't there) and from what you've posted he's probably even been treated unfairly but IMO he's not been discriminated against on grounds of his gender. It could be because the line manager just doesn't like him, and that doesn't count as discrimination. Or he just might not be as good at his job as some of the other people - this is something that can be affected by some of the treatment you've described and his resulting lack of self confidence and attitude. But I'm speculating.

So what you're fighting is an unfair dismissal case. I think your friend (and it must be your friend, I can understand you're angry on his behalf but this is his battle) needs to decide what is a good outcome and what is an acceptable outcome. There is no point fighting to get an apology or tens of thousands of pounds in damages because he is unlikely to get it. Even if he wins an unfair dismissal case at tribunal he will still have to pay all his own legal costs (we're talking around £200 per hour including VAT for a solicitor and £800 per day for a barrister) and unless he has any particular restrictions on getting another job (few jobs in industry, special requirements like part-time/flexible working etc etc) then he will probably get an award of between 2-6 months NET pay. And that's it. Or he might get his old job back.

From putting in an ET1 to a tribunal it can take over year to actually begin the hearing, during which time he will have to show he's mitgated his losses (ie got another job/tried to get another job) which will then affect the level of award made if any.

As his friend I would be wanting to shift his focus from the past to the future. Most people behave with good intentions. That is a fact. He is unlikely to experience such treatment elsewhere. He needs his confidence building and a constructive plan of action to get him another job. Even if he did have to start again at the bottom that has to be better than going back to that organisation?

This is what I would do: Help him find another job. That has to be a priority to help with his confidence and mental health. He may also be depressed now so may need getting to his GP (not everyone will be but he is probably suffering from stress so a GP check up won't hurt).

As part of helping him find another job I would want to help him get the best reference possible, so I would put in a grievance about the way the process has been managed and appeal the dismissal. I would also probably put the claim in to a tribunal - it can always be withdrawn later - but it shows his ex-employer he's serious. Get some legal advice before putting the claim in if you can (not least because it needs to have wording about following the employer's process and that he wants to resolve with employer but has put tribunal claim in to make sure timescale isn't missed), but it sounds like it might be worth doing sooner rather than later.

I suspect this will be resolved with a compromise agreement of some kind. The best victory (imo) would be him getting a new job and his confidence back and from his previous employer a good reference and possibly compensation to cover loss of earnings between old job and new. Anything else is going to be stressful, take a long time and be very, very difficult to achieve.

Hello, thanks that sounds like really sound advice - i agree that confidence building and new job is really important - I think he feels that a payout from the company that somewhat compensates for being held back from every salary review when his female peers have been promoted is important.

In fact his review documents and performance figures have been outstanding - I have copies of all of them, and in one his line manager at the time (now retired) agreed that he was working above his grade and she recommended him for promotion to a role two grades above and worked out a training programme to ensure that when a position came up at that level he would have appropriate skills. It was only three months after his line manager retired that the manager above started playing constant silly buggers and blocking this training programme. In another independent review and audit of administrative processes and service delivery he was commended for 'outstanding performance', 'generating and handling a disproprtionate amount of business in a shrinking market doubling the sucess of this function', 'attracting applicants to this organisation of a dispropotionately high quality' and later in the report his office was touted as 'a model for the operation of these types of outward facing operation'.

Personally it looks like a clear case of talented and successful junior scaring the hell out of an increasingly incompetant boss, who then tries everything to get him to leave, forgetting that loyalty is my friend's key defining characteristic. its quite sad, because his peers and friendship group are similar high performers but are on £40K plus salaries - one of whom, who is at the same institution, comes to him regularly for advice on how to handle difficult meetings, people management issues etc, and he has to go home poor. He is one of the 40 year old male friends I posted about elsewhere who has had no relationship for a long time because he feels he has failed to earn enough money to have a good relationship and that he is a failure at work, despite clearly not being in terms of what he is actually achieving.

I think you are right, I should push him to back-burner this, and work on confidence etc - I am worried a bit though because he is now applying for basic office and call-centre work, even groundsman work for the council, as if he has completely given up the idea of ever being recognised.

What's depressing me is how often this is happening.

I think you sound like a great friend. If it helps, following a process can be hugely comforting. Often the ambiguity of a situation or lack of information makes things worse so knowing what the next steps will be, even if the outcome is uncertain, should help.

I wonder if his loyalty has had a bearing on the situation? Many people experience problems with a manager they don't get on with and they move on. Not liking a line manager (for various reasons, some trivial, some petty and some serious) is one of the most common reasons cited by employees who leave an organisation. By staying a situation can escalate and mutate into something worse, which is very uncommon. But any case where that happens is horrible and unacceptable. Please don't think this sort of thing happens more often than it does. It will drive you mad.

The point you make about low expectations for a new job is interesting. Maybe he needs something undemanding for a bit to let himself get over this? If his life and identity have been all about work previously he probably needs to get a life (IYSWIM). But you'll know better than me.

Supporting him through this, getting him out a bit more and finding a partner will all help. And he doesn't need lots of cash. Sensitivity, loyalty, empathy and the ability to form a partnership are more important than bank balance. Heck, some of us girls even earn our own cash these days!

Wishing you both lots of luck.

Thanks.. I know all this, but I think he has high expectations of himself because of all the evidence he showed me that he is a performer and I think its not so much the money its more about stopping letting himself get shafted - or at least look like he is getting shafted. I think there is another issue is that one of the reasons he thinks he gets grief from senior managers is that he has a really posh accent although he went to a state school, and I think he wants to get to a level where he is not bullyable by people working out their class angst by holding him back.

Several of his ex girlfriends have gone on to be real high flyers and my guess is also that he feels that although he could compete with other men in his 20s , the same girls would be out of reach now and ditch him for being unambitious which is dreadful as he has obviously done extremely well in an environment that hated him. Even I, when I first met him assumed he was more highly paid than he is, and I also know that when I have tried to contact him at work the switchboard can't find him because they are looking on the senior exective list, because they think this too. i think he feels he is 'making do' with life or something.

Its quite sad really how much he has confided in me and how little I can do. I really want this to result in a big payout for him, even though I know this isn't likely...