Employment tribunal nightmare

[Vincenza]

Hello

I worked for a big organisation for 2 weeks short of a year. I was fired for gross misconduct for something I did not do. I have full written evidence of this, great performance reviews from my peers and also evidence that I was fired for taking parental leave of 2 days as my son was sick (am a single mother). I went to appeal, answered all relevant points (AGAIN) and raised a grievance (which I raised prior to initial hearing but they did not want to hear until after it). That was a month and a half ago and I have not heard anything since. I was told in accordance with HR rules they would get back to me in 5 days. I have a solicitor who tells me I have a very strong case for tribunal. Am confused though as to why an HR department would behave like this. Surely such a direct contravention of HR policies would reflect badly on them at a tribunal? When I asked the HR man (AGAIN) where my outcome letter was he replied that it had gone to the lawyers? Is this normal practice or does it suggest that they are going to a compromise agreement (which is what I wanted in the first place). Does anyone have any experience of going to a tribunal?? I have heard that employers rarely go that far and normally settle at the 11th hour?? Please help. I am a desperate single mother who gets no maintenance and now has no income.

Many thanks

I am pleased to say that compensation amounts for injury to feelings is well outside the range of my experience, something I have no intention of changing.

But it does seem to be about how 'bad' the incident is. So years of sexual harassment might be at the top end of the scale, but most aren't that bad and don't attract that level of compensation. So whether you'd be likely to get 6 months/a year salary depends on how much you are paid, and in your case, probably nowhere near, without obviously knowing the details of the discrimination.

I misread your post initially, and assumed the dismissal (in your view) for taking parental leave was for requesting it, and I was assuming that request was denied, and you did mention a request for parental leave later on. But if you took it, and it was because your son was ill, it sounds more like emergency dependents' leave, would that be right? That's still a statutory right you get from day one as well though.

It does all sound very involved and a bit messy - you say you've got sex discrimination, denial of parental/emergency dependents' leave and alleged gross misconduct in a very short space of time.

Legal costs are often something that is considered when a settlement is being discussed, purely because obviously the first thing an employee is going to need to persuade him/her not to take it further is not to be out of pocket, and this would involve legal costs incurred thus far.

It does sound as though you are on your way to possibly settling it, from the quick response you had to your most recent communication with them stating your intentions to file a tribunal claim and registering your appeal as part of the grievance process. I hope that's the case. I would probably be advising the organisation to settle it as it sounds messy, time consuming and potentially embarassing. If you get an offer your solicitor will obviously be able to talk you through what realistically you could get in the event of a tribunal, balanced against how much that would cost you financially and emotionally to bring the case.

Thank you FBB.

It is quite convoluted I agree.

I am glad to hear you would advise them to settle. I am surprised they have not done so yet but as far as I can see their HR department are incompetent and I am hoping it is just because nobody has taken responsibility for it yet.

I am not out to fleece anybody. I just think I should rightfully get what is fair for my potential loss of earnings and the stress of what I have had to go through. Plus there is also the damage to my professional reputation which should be considered.

I am checking back in with my solicitor on Weds to see what further courses of action we can take. Fingers crossed!

I would like to just add to my previous post that obviously that statement that I would probably advise them to settle is made with very little knowledge of the ins and outs of the case.

Also, whether or how soon it settles will depend on how far apart the two parties are in terms of an amount, which is why good advice from your solicitor is so important.

Everything crossed anyway.

Agree with Flowery.

Out of interest, could you fill us in on the parental leave? Was it emergency unpaid leave for care of a dependant or something else? Did they pay you?

Quick precis.....

I worked for 7 months for someone went off on emergency leave for 4 months. I covered her position (with no problems whatsoever and received an excellent year end appraisal from senior members of staff) for 3 months. A contractor was then brought in to fill her position. On his second day he brought in a contractor and obviously wanted her to fill my position (i believe they had a prior relationship). The contractor who filled my boss's position took a very different approach to her and left me with a lot of additional responsibilty (which I had no problem with). However there was a lot of confusion as to who was doing what. I repeatedly asked for clarification of roles and responsibiilities via emails to which I received no response or guidance.

The culmination of this was that I had to prepare a report in Period 1 (which I had done for the previous 10 periods with no problem). Following the lack of guidance I decided to revert back to how things were when my boss was there and deferred to my new boss over sign off for the report and handover to the relevant people (prior to this when my boss left I went ahead and signed off myself). All of this is documented on email and new boss signed off the report. I highlighted some issues I had with it and asked me to highlight them to his superiors (which I had previously done directly) on the Friday. he did not do this. I did not check whether he had or not afterwards as I do not feel it is my job to check the work of my superior. On the Monday my boss was on holiday and I was due to be on a course. Unfortunately my son was ill and I had to take (what I now know to be!) emergency leave. I rang in to my colleague as my boss was not in and asked her to inform my colleagues and the course. On Tuesday my boss's boss rang up my desk looking for me to explain the report (which should have been dealt with by my boss). My colleague informed him that I was away and she would ring me. When she rang me my little boy has just been sick and I had just put him in the bath. I told her where the reports were for sending, said I was in a difficult position but if he had any problems he should ring me back. This is documented on the email that she sent him plus my mobile phone number below. He did not ring.

When I got back to work I was called to a hearing for taking emergency leave without informing my boss's boss (even though my colleague who was also off sick at the same time did not ring him either) and for not ringing the boss back when my son was ill. I had a meeting with him on my return to work and he made some very derogatory comments about me being off work with my sick son which I minuted after the meeting.

The entire trail of this has been documented by me on email. My boss has nothing on email. It is basically one man's word against me. The senior management team that I had previously worked with had no issue with my performance which I have fully documented.

For all of the above I was sacked for gross misconduct. The length of time between me taking the days off with my son and me leaving the building was a month. In this time I completed the Period 2 with no guidance from my boss even though I asked for it and it was reported to board which kind of begs the question if I was that appalling why was I allowed to do this unsupervised....

This is the reason for gross misconduct.

I have loads of other dirt on them though that they don't know about.....

So what are your thoughts please ladies...

p.s. I have just been told that it is not enough that I register an appeal to my grievance but I have to give reasons (I raised a grievance against my ex boss but they would not hear it until after I had been fired). Is this correct? Thanks

So they have defined your not telling the correct person when you took emergency dependents' leave and not returning a call when on that leave as gross misconduct? Good lord.

In terms of the appeal, it would be normal for you to have to give reasons, yes, but 'I feel the decision reached was unreasonably harsh' would do, or similar. At this stage you are planning to put in a tribunal claim assuming you don't get a reasonable offer, so the appeal is about just making sure you've ticked all the boxes and followed the procedure.

You've already (presumably) presented any evidence you wished to be considered, so there's nothing new to add and probably no new points you wish to make, it's just a case of putting in in writing that you disagree with the outcome and want to appeal it so that whoever hears the appeals gets it in front of them.

I agree. The whole thing is ridiculous. Basically I have been made a scapegoat for a lot of other people not doing their jobs. I am still in contact with my old boss and she is gutted that I have left but what can you do? At the end of the day, they should at least have paid me my notice period of 3 months I think.

I have received a very stroppy email from HR telling me I have to give the reasons for my appeal or I get the impression they won't be hearing it. Given that I have presented a multitude of evidence up to now, all of which has been discounted, and they don't bother following procedure I don't see why I should waste my time doing this.

The person who is hearing the grievance is not remotely independant. I have had this problem all along. Can I ask for someone else to hear the grievance who I feel is less biased?

Thank you FBB. You have been a lifesaver. I owe you big time!

I'd just ping an email back to them saying that your reasons for appealing are that you disagree with the outcome and you are therefore appealing the decision as is your right.

If the biased-ness of people is a problem, then yes, absolutely, register that as a concern. I've got a disciplinary action dropped for a friend before because of something similar.

Just say 'My reasons for appealing are a) I disagree with the outcome (as above), and b) the person hearing it was not an appropriate person as he/she was too heavily involved in the situation (or similar).'

Seriously, don't go to any trouble. Just a very quick simple email so that you can't be said not to have followed procedure and have cooperated fully and registering your complaint of bias is fine.

Ignore HR being stroppy, they are not acquitting themselves well.

No I agree. Thank you.

What reasons would people normally get fired for gross misconduct for?? Would you agree that I should at least get my 3 months notice?

There will probably be examples of gross misconduct in your disciplinary policy, but basically they are things that are so serious they make it impossible for employment to continue - they go to the root of the contract and make it untenable.

So normally stuff like drinking/drugs related offences, fraud, racial abuse, theft, that kind of thing. Disobeying management instructions could be, but I would say not ringing the correct person would not be!

I would certainly agree when negotiating a settlement your notice period should be a starting point. Problem with a tribunal claim and compensation is, as we've discussed, your minimal losses financially which would make a huge impact on the compensation available to you, and in many cases make it not worthwhile pursuing. But you do have a potential injury to feelings claim as well, I do think when it comes to negotiating a settlement, your notice period should definitely be considered anyway.

Just a quick update...

No reply from Chief Exec so I emailed him again yesterday and he replied. He said he can't get involved in the process as it is being dealt with internally but he will ensure procedure is followed correctly. I am also wrangling with HR about who is going to hear the appeal to my grievance as I don't consider the person they have appointed as to be unbiased.

Quick question... Flowery can I register a tribunal myself by filling in the forms on the website? Will it cost me any money? Do I need to get a solicitor to do it???

Onwards and upwards!

Many thanks

V

I am surprised the Chief Exec is not already involved tbh - didn't you say earlier that the people against whom you have your grievance report into him? At this level I would expect him to have some involvement.

I wouldn't spend too much time wrangling with HR if I were you. Register in a formal letter your objection to the person appointed, and why you object. Don't get involved in any kind of lengthy debate. They (presumably) are reponsible for finding the most appropriate person, so you should just make sure you make it clear that you object and that you have requested someone more appropriate. You are not anticipating this appeal process to be more than a hurdle to go through in the hope of a settlement or the anticipation of a tribunal claim. The fact that the person hearing the appeal was not appropriate is helpful to you in a tribunal claim, so as long as you register that the person is inappropriate and why, that's all you need to.

You can make a claim yourself, absolutely. The Employment Tribunal system is designed to be accessible to everyone, not just those with access to legal advice. The form is fairly easy as well. Having said that, it would always be advisable to get a solicitor to do it or help you do it - haven't you got one? I thought you were already taking legal advice?

I do have a solicitor but I have incurred quite a lot of legal fees already and am now reluctant to incur any more. I would like to register for a tribunal to scare them but I don't really want to go through with it. Am fairly au fait with legal language to due to the nature of my job so if it is quite easy and I wouldn't be jeopardising my case I may as well do it myself.

Thanks for your advice which was, as ever, invaluable!

V

It's not easy as such, just that the idea is you shouldn't need legal representation to do it, so you wouldn't be jeopardising your case directly by completing the form yourself.

However, I would advise you at least ask your solicitor how much he/she will charge for filling it in for you. If it were a very straightforward case, your boss had said 'you're fired because you are pregnant' or something equally blatant and clear-cut, doing it yourself might be ok.

However your case is complicated and involved. There are issues of sex discrimination, dismissal for trying to exercise a right, denial of notice pay, and all the other ins and outs. A solicitor with experience of tribunals and of completing these forms will know how to phrase it right, which bits to emphasise and how much detail (or not) to put in. One written by a solicitor will make it look more as though you might go through with it, and therefore will help you negotiate a higher settlement.

Ask how much it would cost - you may find it's worth it when it comes to negotiating an amount for you to drop the case.

will do! That is really useful to know.

Thanks again Flowery

Vincenza,

I would also caution you about putting in a claim with no intention of going through with it. Although you are not normally responsible for your employer's legal costs in cases in a Tribunal, you may be if you have acted unreasonably. Filing a claim you have no intention of going through with or pulling out at the last minute could fall within this heading.

If you are going to file, your state of mind at this point shoudl be that you hope you won't have to get to a hearing, but if you have to, you have to...

I would advice you to ring ACAS - they will give you free employment law advice and point you in the right direction. tel no 08457 47 47 47 acas.co.uk
They aim to help employers and employees come to a mutal agreement and aim to not let things get to tribunal stage - much less stressful and time consuming for you hopefully.

Your employer cannot fire you for taking 2 days parental leave - everyone who has a dependant is entitled to take time off work for either emergencies or planned/requested leave. However, this is pretty much normally unpaid. If you followed their absence policies (ie phoning in by a certain time, requesting time off within a certain time, bar emergency leave exceptions)

Ref taking them to tribunal, there is a time limit to make a claim to your employer/former employer - not sure offhand what that is.

Hope this is of help - good luck.

oh - just read the rest of the threads.. Shame on them for treating you that way. Ringing the bosses' boss is ridiculous unless they specified that in a policy (unlikely!) I am sure they cannot get away with calling this gross misconduct.

He sounds like a sexist pig - irresponsible of him to make innapropriate comments about you taking time of with your sick son.
I would stick to your guns, well done on documenting the evidence and see what ACAS will advice you on your next step.

Hi Guys

Am happy to go to tribunal if I can represent myself. I just don't want to incur any more legal fees than I have to!

I have a few other avenues to pursue before I file my claim.

Thanks for the ACAS number. I am going to ring them asap.

V

Vincenza,

Goog luck. Let us know if we can help more.

Just read my last post and I didn't mean to sound nasty. I've just seen people tripped up by this. As long as you know the 'right' answer if asked, you're fine, so I thought it was worth mentioning...

Hi - sex discrimination is absolutely not based on injury to feelings!

ilovemydog - what do you mean? One of the legal headings of compensation for discrimination is injury to feelings. That's how it's referred to in the tribunal. It doesn't mean it's taken lightly or anything.

as far as assessment of quantum, injury to feelings is a head of damage, but not the only one.

but what do I know

Re: why do HR do things that are in direct non compliance of their own policies? Because they can get away with it in the majority of cases, which subsequently off sets the times that people like you challenge them.

Oh yes, totally agree. It's not the only head of damage. It was just that the OP told us that she found a new job straight away, so she didn't really have direct financial losses .