if I lose emp tribunal do I still keep my job?

[feelingfedup]

Am now in the formal grievance process as my capability to do my job has been unfairly questioned.
I am prepared to take it to emp tribunal if all the internal process do not support my claim.
But, if I lose at tribunal does it mean my employer can sack me, on said capability grounds?

So you are bringing a grievance for unfair use of a performance management process? What would you claim at a tribunal? Are you saying this is constructive dismissal?

If you are saying it's constructive dismissal then to claim this you have to then resign as your claim would be your employer's behaviour left you no alternative but to do so as it was a fundamental breach of the contract between you. So if that's what you are intending to claim you need to have left employment to do so.

If it's something else you would be claiming, something like discrimination, you can do that while still in employment. If you bring a claim for discrimination and the claim fails, you will still be employed as you will not have resigned or been dismissed. Then your employer can carry on performance management or whatever, as long as they are obviously extremely careful, and could potentially dismiss you for capability following various warnings, timescales to improve, support, training and all that.

To add to what Flowery said, if you are actually dismissed under the performance plan and bring a claim for unfair dismissal, you can seek reinstatement. However it is very rarely awarded.

If your employer claims that your claim is vexatious and the ET finds in their favour, I'd imagine that's gross misconduct?

thanks flowery and ribena.
Flowery, i would demonstrate to tribunal that the organisation has not followed it's own proceedures and policies with regards to performance management

Should have said I am claiming unfair.
treatment on basis of discrimination. Boss is a bully, and other staff will corroborate this, but I am the only non-white member of the group, and the only one she is unfairly taking disciplinary action against.

sorry bauble - crossed posts with you. Could ET really be classed as gross misconduct? Surely if ET thought claim was nonsense they would refuse to hear it?

Sounds like you have a strong case anyway.

AFAIK the system doesn't weed out vexatious claims very reliably.

So are there white members of the group performing similarly to you and not having any action taken against them, or having action taken but in a fairer way?

yes, white team members performing same as me but getting treated badly, but not as badly as me.

I think it would be a very brave employer indeed who sacked someone for gross misconduct because they brought an unsuccessful race discrimination case to a tribunal. Personally I wouldn't risk that. You are more likely to be dismissed on capability grounds I think, and if you bring a race discrimination case and lose, they will be much more careful how they handle the problem I would guess.

Have you read Equality Human Rights website on race discrimination and bringing a tribunal case?

I didn't have the details of the race issue when I mentioned gross misconduct, tbf.

But if an employee gets a case to tribunal that is then found to be malicious/vexatious, wouldn't that be gross misconduct ie. Lying?

Have my grievance meeting next week. Will have union rep there.

Any advice on how I should set out my case? I've got so much to say and am worried I will just ramble and come over like I'm just ranting.

And what consititues 'evidence' - copies of e-mails, notes made at the time of the incidents - anything else?

Make sure everything you say is directly relevant to the case you are making, otherwise you are right you will come over as just ranting.

Presumably you set out your case in your written grievance, enclosed evidence, that kind of thing? If you didn't and you are now planning to submit evidence you will probably find it will be adjourned to give your employer a chance to look at and consider response to evidence.

Grievance isn't an opportunity to moan generally. You are making a serious allegation and all points you make in the grievance hearing should be directly in support of what you are claiming in some way. Don't undermine any excellent points/evidence by burying it in irrelevant detail, even if you are feeling genuinely aggrieved more generally.

Copies of emails, notes from incidents and meetings, copy of performance management process you feel is either not being followed or being used incorrectly, plus any evidence you have to suggest your colleagues performance is also being managed but is being treated differently, plus any evidence you have to suggest this is because of your race - any other anecdotal evidence of race discrimination which gives a context of this being more likely.

Thanks Flowery - will let you know how it goes.

right, they have listened to my experiences and have removed said manager of all line management responsability.
Not said anything to me about the alleged competency issues yet though?

Presumably someone else is now your line manager? I would suggest you speak to him/her and establish whether he/she intends to continue monitoring your performance and whether the proper procedure will be followed if that is the case.

ok, thanks for the advice. I was going to wait till they had written formally to me, but I will ask my new line manager if the performance management will still commence. I was hoping that giving me a new manager was implicit agreement that my grievance was justified, and that there are no grounds to question my ability to do the job.

Well i don't know, it depends. I got the impression that your grievance was about not using the proper procedure, which you felt was racially motivated, rather than the fact that you should not have been subject to performance management at all.

If you haven't had the letter yet then wait and see what it says.

Got the letter earlier this week, not sure what to make of it really.
They agree with my complaint that they have not followed their own policy for performance management, and agree that I have been bullied by my manager. However, they say this is not racially motivated. They also apologise for the way I have been treated.
BUT, they say they are still not sure if I meet the required standard, and want to monitor my work closely for the next 6 weeks to decide.
Does not feel very fair to me? Am I expecting too much?

How do you feel that it's racially motivated? Is your boss treating you differently based on race alone?

Also, who is going to be monitoring your work? Someone independent or your boss that your company has already admitted has bullied you?

Why does it not feel fair? Because you disagree that it wasn't racially motivated? Or because you think your performance is good and shouldn't have any close monitoring? When you ask are you expecting too much, what are you expecting?

If you feel it's unfair because you do definitely have reason to believe it was racially motivated you can appeal the decision.

If you feel your performance is good enough, then that will come out in the monitoring. You have a new manager now and given that this whole issue arose from performance management in the first place, I think it's actually very reasonable of him/her to want to assess you over the next few weeks to work out whether any performance management process is warranted, and if so, to ensure it's done fairly.

If you are performing well, that will show in the monitoring process, and all will be fine.

Could you ask your employers to clarify what the outcome of your grievance was. From what I understand, your grievance was that your capability had been unfairly questioned and you later added that the reason behind this may have been race discrimination. They have said that they did not follow their own policy but have not said whether they agreed that there was no grounds to question your capability and they have said that they do not believe you have been discriminated against on grounds of race.

So I would ask them for clarification on whether they agree with you that there were no grounds to question your capability - if so, they should not treat you differently from your colleagues i.e. they should not be monitoring your work any more closely than they monitor your colleagues work. If on the other hand they believe that there were grounds to question your capability but that it was all managed very badly from a procedural point of view then it is understandable that they would want to monitor your work although, they should then provide you with details of why they came to this conclusion to avoid the whiff of race discrimination hanging around the matter.