Fired - Appeal vs Tribunal?

[yapyap768]

HI

Need some advice pls

I have been fired with a 1 month PILON for taking too much sickness frequently (Had a leg surgery).

I have an option for work appeal (or) take it via the tribunal for unfair dismissal. As I understand, the tribunal will be more accomodating if I do the appeal process.

However I dont want to do the appeal in case they re-instate me.
I have been treated so badly over the last 'x' years, that I really want to leave (But employer thinks they have treated my fairly).

But at the same time dont want to lose an advantage in the tribunal by not doing the appeal.

Any thoughts?

Is your position that you didn't have the amount of sick leave that has been stated?

That the correct process for dismissal wasn't followed.
Or that you have been discriminated against due to a protected characteristic?

Ultimately companies are in business and employ staff to deliver specific tasks. If someone is unable to meet the requirement for any reason, including sick health, then the company has to have the ability to dismiss the member of staff due to capability.

I understand that it can feel horrible if you are the one that is sick and unable to work. However, companies aren't charities with the purpose of providing for their employees. Many organisation start a disciplinary process for 3 periods of sickness or 15 days within 12 months.

Even though it is unpleasant for everyone involved companies can dismiss a member of staff for ill health even if its something awful like cancer. Typically many don't, but they can legally.

Also have you worked there for more than 2 years? If not then discrimination is the only potential thing that you can challenge as an employee can dismiss for any reason at all apart from discrimination before 2 years.

A few details needed to be able to respond:

• how long you've worked there (in units of years)

• did they fully comply with their sickness absence policy and timescales for enacting the process, so you knew in advance what was expected and permitted under their policy. Policy is there to inform staff and employer and to have a clear guideline from which to work, so it is fair and transparent. Deviating from their policy (or ignoring it completely) could stack up against them.

• Duration of each period of absence may be relevant, depending on their policy, so you'd have to refer to that - Bradford scale if used, places a higher weighting on numerous small amounts of absence, versus 1 long period. COVID will start to feature more in policies, as long COVId may be classed as a disability. Cancer is very often classed as a disability, an employer would be very foolhardy to dismiss someone with cancer.

The detail of the above considerations are key to your next move.

• you can't have it both ways. You can't deliberately avoid them reinstating you back into your role, by not appealing but then go to all the expense and time (for both sides and the ET) of a court case and expect the ET to Award you compensation. ET is there to restore the person who is wronged to their correct position. Which in your case would be getting your job back. But I'm saying this unsighted of your employer's policy and how they actually treated you throughout the disciplinary process, which ET will want, chapter and verse.

Reinstatement through a tribunal is extremely unusual.

You’d normally be expected to have exhausted internal procedures, including appeals, before bringing a claim. This is because the employer needs to be given reasonable opportunity to put right anything it has done wrong, just as an employee does. Within reason, obviously.

However it’s not necessarily a dealbreaker. You may be able to convince an ET that you had every reason to think an appeal would be pointless. Whether that would be possible depends on the facts of the case.

@flowery

Reinstatement through a tribunal is extremely unusual.

You’d normally be expected to have exhausted internal procedures, including appeals, before bringing a claim. This is because the employer needs to be given reasonable opportunity to put right anything it has done wrong, just as an employee does. Within reason, obviously.

However it’s not necessarily a dealbreaker. You may be able to convince an ET that you had every reason to think an appeal would be pointless. Whether that would be possible depends on the facts of the case.

The OP couldn’t honestly give evidence under oath that an appeal would have been pointless if she’s concerned about reinstatement at this stage, though!

Tactically you can appeal the finding (dismissal) but state you don’t wish to return as the relationship has irretrievably broken down… but that wouldn’t stop the employer from reinstating you, and as that’s automatic and you have no choice in the matter, you’d have to either refuse to return (and be sacked for gross misconduct for being AWOL) or resign and claim constructive dismissal. Constructive dismissal would not be a desirable claim here I don’t think.

The other option is just to appeal and see what happens… reinstatement IME is incredibly rare, in 15 years I’ve seen it happen less than the fingers on one hand, so it may not be a huge risk.

Finally if you don’t appeal, there’s a risk it could affect whether you win your claim (in that the employer had no opportunity to reinstate you or follow due process), but if you won then you’d likely have your compensation reduced for an unreasonable failure to follow the ACAS Code of Practice.

Personally, I’d probably be inclined to appeal and see what happens, unless the procedure they followed and the decision to dismiss were both clearly grossly unfair (which increase the chances of reinstatement).

”The OP couldn’t honestly give evidence under oath that an appeal would have been pointless if she’s concerned about reinstatement at this stage, though!”

No, I agree. I was more answering Daisychain01’s comment that the point of an ET is to restore claimant to their correct position, in the OP’s case getting her her job back.

Just to add, I agree with you flowery and MrsP, true that ET would be unlikely to "order" the employer to give a claimant their job back. I was trying to illustrate that the principle of ET is to restore the claimant to a realistically similar financial situation to compensate for the job loss.

I'm struggling to understand what the OP is trying to achieve or what they are expecting. If nothing else, they do need to be really clear in their submission if they go down the ET route, as to what their expectation is, within the realms of pragmatism. Too many gaps and assumptions in the OP to be able to give much useful advise.

In their situation, I wouldn't assume the employer will shift their position of the month in lieu of notice which could indicate that service duration hasn't been long. The OP could counter the offer by asking for 2 months. Or they could get a solicitor to review their situation holistically and offer their opinion with all the fact before them.

OP - do make sure they pay you for any accrued leave in addition to whatever settlement you get, up to the date agreed as your final date of employment.

advise = advice