Tribunal help - unique dismissal event?

[EnvyDeano]

Hey!


So a few months ago I was dismissed for gross misconduct, following months of bullying by the HR manager and business director.

After trying to raise a grievance about the bullying I was told that the 2 people that I am complaining about are the only people in the business that can hear/ judge my complaint and it would make things worse. I was told the only option I had was to resign... so I did.

While working my 3 month notice the bullying got worse and I was signed off.

As a side business (Ltd company) I provided the company with their website (both design and hosting), while I was off sick the Director emailed my business saying that I had acted fraudulently and that he wanted all services to be cancelled with immediate affect.

I went in and spoke with him about this and wared what the consequences of cancellation were (i.e. immediate loss of the site and email etc). With in 30 mins of this meeting HR emailed me to say I had been fired with immediate affect for gross miss conduct due to threatening behaviour. This 'threatening behaviour' was apparently me warning what will happen if I cancel the hosting etc and was worded on the dismissal letter as ' threats to destroy the company website'.

I was also not given the right to appeal.

The company though that I had been there less than 2 years, and didn't follow any procedure. Whihc is generally how they treat all past staff - they like to make sure you are out before you have 2 years of service and would make stuff up. I was luck as I have just made it by 1 week

Now my question is - does anyone know of any case law that would fit the event?

I was dismissed for a conversation that took place where I was not an employee of the company the fired me - I was there as a contractor/ representative of my own business to discuss the company website.

As I was signed off it was clear I was not there as one of their employees.

I am no going to tribunal and have mountains of messages to support bullying claims etc but cant seem to find anything about taking part in the conversation as a contractor rather than an employee etc.

Any thoughts?



Many thanks in advance.

D.

[ULA]

There are a number of things to "unpick here" as it is clear there has been a blurring of the lines between your direct employment with the company and the provision of services via your Ltd company.

1. For the work you did on the company website did you invoice your ex-employer for these services via your Ltd company?
2. What contract did you have in place with your ex-employer for the website and what were the cancellation terms under that contract, i.e. did they allow for you to immediately switch off services?
3. When was your start date and termination date from the company in respect of your employed work?
4. For what part of your employed work did you provide these website services via your Ltd company?
5. Are you past the stage of ACAS early conciliation?
6. If so what is your claim for as detailed in your ET1?

[EnvyDeano]

Hi ULA,


Please see below the answers to your questions

1. For the work you did on the company website did you invoice your ex-employer for these services via your Ltd company?

Yes - monthly which the director had to sign each month before accounts could pay.

2. What contract did you have in place with your ex-employer for the website and what were the cancellation terms under that contract, i.e. did they allow for you to immediately switch off services?

There was a 12 month contract, that would renew at the end for another 12 months. Cancellation terms were you can cancel within the first 30 days of the contract or at any time there after. However after the 30 days a termination fee would be due. The T&C also allowed us to terminate the site for non payment etc (standard stuff).


3. When was your start date and termination date from the company in respect of your employed work?

23/03/2020 - 01/04/2022


4. For what part of your employed work did you provide these website services via your Ltd company?

None. These were completely separate, so I didn't work on this project as there employee at my business - if that makes sense. All work done here was outside of the employed work.


5. Are you past the stage of ACAS early conciliation?

Yes - the almost settled, but withdrew at the last min.


6. If so what is your claim for as detailed in your ET1?

My claim was for unfair dismissal as they did not follow a fair process (i.e. no investigation, meeting, dismissal, appeal etc). Predetermined outcomes where the norm there for disciplinaries, I was a senior manager there so I know. Also detailed it was unfair as I was dismissed for the contents of a conversation where I was not there as their employee - I was signed off sick from them.



Hope that helps

[ULA]

So my thoughts are:

1. You had already resigned from the company and you were effectively in your notice period when you were dismissed for gross misconduct for "threatening behaviour" that was not in connection to your employed work with the company.
2. Even though you were off sick you were still an employee of the company, if your notice period was still in force. However the reason for the meeting was not related to your employment but services you supplied via your limited company outside of business hours to your employer. This point is very key point for you

If you are claiming unfair dismissal then the potential value of the claim will be covering the period from when you were dismissed for gross misconduct and the end of your notice period assuming that you were only paid up until the date they dismissed you. There will also be the entitlement to an uplift for not following a fair process.

[EnvyDeano]

Thanks ULA.

Are you aware of any case law that would relate to my situation? Anything that I could refer to so I know what succeeded or failed on similar claims?

[ULA]

There is plenty of case law around unfair dismissal and lack of a fair process which is the basis of your claim.

It would be for your witness statement (WS) to set out hat at the time of the dismissal, although still an employee, albeit on notice the termination came about as a result of a meeting in which you were there in your capacity as company xxx discussing the provision of services to your employer under that separate contract.

I would also suggest that as part of the exchange of documents you include the 12 month contract your Ltd company had in place and copies of invoices you sent in connection with that service.

[EnvyDeano]

Thanks ULA.

I have read a lot about unfair dismissal and not following the right (or any) process. I am concerned the Polkey would play apart and effectively reduce any compensation by 100%

That the only reason I ask for any specific case law that you may know about that would fit my situation so this could be referred to as Polkey would.

Thanks for your help.

[ULA]

The Polkey case sets out the principle that any compensation for not following a fair process may be reduced, if by following a fair process the outcome to dismiss would have still been to do so.

I am not aware of any unfair dismissal cases that directly reflect this issue of working on a PAYE and Ltd company basis and the termination of your employment.

I will however reiterate that your expectation of compensation, if it was found to be an unfair dismissal, is potentially only for the period of any non-payment of your notice period, there are no future employment losses since you had already resigned when this happened.

What reference if any are you making to the bullying/harassment you mentioned and the grievance which does not appear to have progressed or been resolved. Just wondering about whether at the time of resigning there could have been any view of constructive dismissal although this would depend on the timing of your resignation before or after 2 years service.