Grievance appeal advice please!

[twinklelittlestar01]

Hello!

I will try and keep this short and vague as I don’t want my employer reading up on this but I am looking for some advice please.

I raised a grievance against my manager (X) as she was bullying/harassing me after another manager revealed to her I had complained about her conduct at work.

During work one day she shouted and swore at me and told me to go home. I refused and stayed put until a higher level of management (Y) would arrive to have her resolve our dispute instead.

X and Y are very good friends out of work but I still thought Y would behave neutrally. She didn’t! The 3 of us went into the office to discuss what happened. Given their personal friendship, I asked but was denied an independent witness or recording of this meeting by Y and then was ordered to leave by her aswell.

I raised grievance against X and Y and in their statement, they have both said I shouted hence why I was sent home.

My employer (HUGE organisation) “didn’t think it was necessary” to copy CCTV from the date in question and has rejected my grievance point that Y did not remain neutral and that they both ganged up on me. My employer believes the 2 of them and this is based on probabilities and that it’s 77% against my 33%.

My argument is that they are good friends inside and outside of work so it’s not completely far fetched that they would fabricate their evidence/witness statements to portray me in a harsher light.

I have appealed this point but want to question how this probability was decided ( at the appeal meeting) and whether it’s even appropriate given their relationship.

Is that how probabilities in employment law is decided when there is a case of 2 people against 1 person?

Please can someone help! I am unable to afford an employment lawyer.

I should also mention I have brought a tribunal claim so suspect this is why they haven’t upheld any of my grievance points.

Thank you

What is your tribunal claim for? Presumably another matter?

A balance of probabilities is just that- if it is two words against one the balance tips in that favour, you have to assume everyone is being honest. Your best bet here is to appeal based on process (failing to consider evidence such as cctv) Bit what is your end game? Have you been open to mediation? Are you facing disciplinary for failing to comply with a management instruction or shouting?

There are often several versions of an event and all accurate in the belief of the witness- I don't believe in 'truth' just one person's perception of what happened.

Can you just clarify OP what actual meetings you have had? Have you had a grievance hearing then appealed the outcome? Has the appeal meeting taken place?

My employer believes the 2 of them and this is based on probabilities and that it’s 77% against my 33%

Their % probability is meaningless - doesn't even add up to 100%! They've skewed it in their favour by "awarding" themselves 77% .

On the assumption your Tribunal claim is related to harassment under the EqA2010.....

Clearly, your employers are rejecting your grievance, putting you in the worst possible light as an employee, making you to look intransigent and uncooperative so they have something to fight back with, to justify themselves.

What isn't clear, beyond your reference to Harrassment, what are you accusing them of? Although there are laws again harrassment in Tribunal you need to give the court sufficient facts to convince them of your employers discriminatory behaviour, and I don't think you've given sufficient information on here to explain that.

If you can't afford legal representation I would seriously reconsider your tribunal action. Going it alone can be extremely stressful. Even with a solicitor it is, but without, it's very unpleasant when it's you against them when they will have funds to field a solicitor and a barrister if needed.

@mygrandadsvest

What is your tribunal claim for? Presumably another matter?

A balance of probabilities is just that- if it is two words against one the balance tips in that favour, you have to assume everyone is being honest. Your best bet here is to appeal based on process (failing to consider evidence such as cctv) Bit what is your end game? Have you been open to mediation? Are you facing disciplinary for failing to comply with a management instruction or shouting?

There are often several versions of an event and all accurate in the belief of the witness- I don't believe in 'truth' just one person's perception of what happened.

treatment followed whistleblowing about X where he committed gross misconduct, racial discrimination. They have completely failed in the grievance process and only began to take me seriously once the tribunal claim was submitted. Overall, I approached 3 levels of management re. the grievances and was being ignored.

@whydontkidscomewithauserguide

Can you just clarify OP what actual meetings you have had? Have you had a grievance hearing then appealed the outcome? Has the appeal meeting taken place?

I had the grievance heard via writing as I was off sick and preferred this option. I then appealed this outcome. Had ANOTHER meeting and have had the outcome and tbh it really sounds like they are clutching at straws to not uphold any of the points. Presumably because it will reflect badly at tribunal. I am now appealing this outcome and stuck on this silly probability thing as I am shocked at the reason they've given!

@daisychain01

My employer believes the 2 of them and this is based on probabilities and that it’s 77% against my 33%

Their % probability is meaningless - doesn't even add up to 100%! They've skewed it in their favour by "awarding" themselves 77% .

On the assumption your Tribunal claim is related to harassment under the EqA2010.....

Clearly, your employers are rejecting your grievance, putting you in the worst possible light as an employee, making you to look intransigent and uncooperative so they have something to fight back with, to justify themselves.

What isn't clear, beyond your reference to Harrassment, what are you accusing them of? Although there are laws again harrassment in Tribunal you need to give the court sufficient facts to convince them of your employers discriminatory behaviour, and I don't think you've given sufficient information on here to explain that.

If you can't afford legal representation I would seriously reconsider your tribunal action. Going it alone can be extremely stressful. Even with a solicitor it is, but without, it's very unpleasant when it's you against them when they will have funds to field a solicitor and a barrister if needed.

I agree the percentages are incredibly silly! I have referred to ACAS grievance procedures and it says:

"The balance of probabilities-
An investigator should endeavour to reach conclusions about what did or did not happen, even when evidence is contested or contradictory. In these circumstances an investigator will need to decide whether, on the balance of probabilities, they could justifiably prefer one version of the matter over another and explain why.
Unlike criminal law, an investigator conducting an employment investigation does not have to find proof beyond all reasonable doubt that the matter took place. An investigator only needs to decide that on the balance of probabilities an incident is more likely to have occurred than not.

I can't really make sense of this and wonder if the above means they can get away with this silly explanation.

Thank you all for your responses by the way! I'm sorry if my posts seem messy but I'm new to this forum and am struggling a lil 😬

I am not very clear what the grievance is? You sound a little muddled and I would be concerned about you taking this further without any representation.

You have mentioned that someone committed gross misconduct, if they were found to have committed this, why do you need to raise a further grievance, isn’t that enough to demonstrate it was dealt with?

You are bringing “whistleblowing” into a matter of discrimination. Whistleblowing legislation does not extend to personal grievances such as discrimination. Whistle blowing relates to matters such as health and safety or perhaps illegal activities such as tax evasion. Again I mention it because I would be concerned about your ability to represent yourself when (like most people) you are not up to speed with aspects of employment law.

Another thing is the balance of probabilities matter that you have referred to. This is another red herring as employers and employment tribunals to not need to apply the balance of responsibility test. That is totally wrong.

In criminal courts, the burden of proof is “beyond all reasonable doubt”. In civil courts the burden is “balance of probability”. In employment cases the burden is lower still, the employer only needs to have carried out a reoasnable investigation and have reasonable grounds to believe that something took place. The precedent for this aspect of employment law is the case of Birchall vs BHS 1979.

What is the situation now? Have you been dismissed? What outcome are you looking for?

Thank you for your response.
I’m sorry for being unclear but to be honest there’s so much involved that it’s all snowballed. I am being careful not to reveal too much!

X was the one to commit the gross misconduct but was suspended and then brought back for retraining. My grievance is because it was several members of management involved in covering her misconduct and failing to hear my concerns. The whistleblowing is separate to the discrimination as I only experienced this once X found out I am the one who reported her.

Can you explain more about what you mean regarding the probabilities matter please?

I am now at the last stage of the appeals process. I would like an apology from the company admitting their failures and for them to promote me. I was promised a promotion but once Y knew I had raised the complaint she went back on it and is denying ever discussing the promotion. Unfortunately I don’t have any written evidence about this.

As it stands, I am preparing with the full intention of going to Tribunal.

My argument is that they are good friends inside and outside of work so it’s not completely far fetched that they would fabricate their evidence/witness statements to portray me in a harsher light
But that's nothing more than a supposition. I've been very close friends with people at work, but if one treated another member of staff very poorly, I certainly wouldn't defend them, most likely used the 'too close to the situation' get out card.

I could be totally professional if I didn't know one way or the other.

Also, you mention whistle blowing, did you follow the policy to report it? Because in your opening post, you just say that you had complained to manager about her conduct, which is different.

Thanks for your reply.
When I reported X's wrongdoing to Y, no action was taken. I presume because of three friendship as they are very good friends. I then escalated it to the next level above Y and although the misconduct was proved, they didn't investigate the bullying/harassment, it was sort of brushed under the carpet. I did follow the correct procedure for the whistleblowing.

Thing is, @twinklelittlestar01 companies take the view they "don't have to do something until they have to do something". They will minimise, cover up, sweep stuff under the carpet if it means they don't have to deal with it. They will turn a blind eye to bad behaviour because it's easier that's having to sort it out and admit wrong-doing. Even though they'll come out with all the corporate guff about having zero-tolerance towards bullying.

They will do everything possible to keep a lid on things (as they have done with your grievance), they'll minimise, deny, collude amongst colleagues, so they can evidence to the outside world that they've enacted due process. They will only be dragged kicking and screaming to acknowledgement if forced:

a) if an employee's actions stand to risk a person's life/health/safety, then it's possible to enact the whistleblowing policy, and if there is a sufficiently cohesive case, then they may capitulate, if the alternative is exposure/reputational harm;

b) if an employee has sufficient grounds to accuse their employer of flouting employment law - eg: a discriminatory act such as promoting a man instead of a woman, because they hold antiquated attitudes towards women in the workplace, or hold bigoted racist views (there are 9 protected characteristics covered under EqA2010). The employer may take the view, if the evidence is irrefutable, to capitulate before the Tribunal hearing, to avoid the costly, time consuming process esp if the balance of risk is against them.

All I'm saying is don't expect your employers to uphold your grievance. They may take the hard-nosed view that they'll see you in court, as they've done nothing wrong. Grievances are meant to be a way of signalling a breakdown in the employer/employee relationship to try and resolve the problem, but they are always skewed against the employee, the employer holds the power.

Going to Tribunal is not always the most beneficial action, it's a very high price to pay, for very little gain.

Op, based on what you've said here you will not win on appeal.

They won't apologise and you won't get your promotion.

But there are other reasons for appeal. I did one because I knew I could go and give far more information about how I'd been treated to very senior colleagues. Although I couldn't prove anything as it was all conversations, I got to have my say which felt good.

Op I think you need help. Are you in a union?

Thanks for your CoR
Unfortunately I'm not a member of a union which obviously would have helped.

I agree that they probably won't say anything different or apologise and that I won't be promoted.

However I want to make sure I exhaust all stages as I would rather know that I have tried than not.

I don't believe speaking to anyone higher up will help because they pretend to "understand" in the meeting and then the outcome letter goes against everything they say in the meeting. It's very frustrating 🤬

@twinklelittlestar01 they're playing for time. The longer they can drag out the process, the more they can mess with your mind by saying one thing and doing something else, the more likely they think it will be that they cause you to abandon the process.

You need to prioritise your own health and well-being.

As far as the Tribunal is concerned everything that is causing you maximum grief, has zero relevance to what they will scrutinise. If your employer hasn't actually broken a specific employment law, your efforts will not bear fruit, no matter how much you follow a "process".

The sequence of events is very confusing.

There's the complaint event, the argument that lead to the swearing, the complaining to Y about X, the event that lead to the wistleblowing, the suspension, the discrimination, the bullying, the grievance, the filing to the tribunal.