Automatic Unfair Dismissal - advice and support appreciated

[Spell Singer]

Hi Legal Beagles,

I'm looking for advice about a sticky work situation I've found myself in. My contract was terminated during a 6 month probation review meeting on Thursday with one week's notice after returning from GP prescribed sick leave for 2 weeks (10 work days) due to depression and anxiety.

Before I was off sick, I was bullied by a colleague and an incident occurred where I left my shift early due to feeling unsafe and triggered by a verbally aggressive confrontation from her including shouting at me which caused anxiety. No managers were on site at the time so I called HR to explain that I had left early and what had occurred, and they later emailed me requesting more info, which I provided, but they never replied or investigated the incident and told me that I can raise a grievance procedure about this to be investigated (just before they sacked me).

I received the invite to the probationary review meeting to my personal email address while I was signed off on sick leave due to anxiety and depression. It said that the meeting would review my performance and address two concerns; around leaving my shift early on two occasions 'when you felt you were unable to manage your emotions' was their wording (I left my shift 20 minutes early back in February due to illness and management weren't present to authorise the absence, and the incident where I left after the aggressive encounter from a colleague); and regarding absence levels (prior to this occasion, I had been signed off for 10 days (7 work days) due to anxiety and depression in February). The invite also said that the meeting would result in extension of my probationary period or termination of employment.

I attended the meeting on Thursday and asked why I hadn't received a response to my report of bullying at work and why it hadn't been considered in my reason for leaving if it were to be raised as a concern that affects probation and has also impacted my mental health and absence, and why it hadn't been investigated, and HR said they couldn't respond due to staff leave and that I could still raise a grievance statement about what they described as a 'complaint'. At the start of the meeting, my manager outlined that I had met KPIs, forged good working relationships with clients, completed all mandatory and much optional training and development courses etc which means there was no issues with my performance or ability to carry out everyday work tasks as a reason to terminate my employment.

I meet disability criteria for long term depression, anxiety and emotional instability personality disorder and my work are aware of these illnesses, and my GP has prescribed absence due to work-related mental health as a result of a situation with a colleague that I deemed to be a risk to my health and safety, and which triggered exacerbation of mental illness. I left work due to this and reported the incident and reason for absence to HR, and instead if

[Spell Singer]

Oops it cut me off and I can't figure out how to edit to add further detail - but hopefully you get the point and can help! Basically, I feel that the dismissal could be considered automatically unfair due to disability discrimination under Equality Act 2010 re: leave and absence, but also health and safety under section 100 of the Employment Rights Act 1996 which says that employees should not face detriment or dismissal for leaving work pertaining to an event which is perceived to be a serious/imminent threat to health and safety of the employee (in my case mental illness triggered by bullying).

My initial plan is to submit a grievance to my employer raising that I feel the dismissal was automatically unfair and discriminatory - should I request a settlement figure within the grievance or should that happen separately/down the line? If so, how much? I was thinking 3 months gross pay, or maybe 4 to start high with aim of 3.

I plan to call ACAS on Tuesday for advice but I think I only have until Thursday to submit my grievance re: dismissal as HR said I have 7 days to do this following dismissal, however I haven't received written confirmation of dismissal yet.

I can't afford legal advice but am seeing if I am entitled to any free advice seeing as I will very soon have no income.

Any experience or advice around this specific issue and how to proceed would be much appreciated! Thank you for reading

[ULA]

The first stage would be for you to appeal your dismissal as you have set out including the fact that a "complaint" which was very clearly a grievance was not properly investigated.

by all means contact ACAS, however you do need to ensure that you carry on and completed the internal process, that is raised your appeal, have that heard and then outcome provided.

[Spell Singer]

Hi ULA

Thank you does that mean I shouldn't mention a settlement in my original appeal?

[ULA]

I think you need to clearly set out that you have really solid proof to pursue such a claim before you start to discuss settlement. It may form part of your appeal hearing meeting.

[Spell Singer]

Okay thank you. I audio recorded the meeting where they dismissed me but of course they don't know that. Is that strong evidence or would it backfire that I covertly recorded the meeting?

[ULA]

I obviously do not know what policies your company has in place regarding recording of conversation in the workplace. However there is the potential it could amount to disciplinary action being taken against you.

[Spell Singer]

Right okay. Are they able to issue disciplinary proceedings if they have already terminated my contract with a weeks notice though?

[ULA]

Potentially they do not have enough time, if you are leaving this week, to have a disciplinary hearing. If there was longer on your notice they could hold a disciplinary deem it gross misconduct and summarily dismiss you without having to pay you notice.

Again I add this is what could potentially occur but without knowing any of your company's policies it is difficult to say.

[Spell Singer]

Hi ULA,

Sadly I am now at ET stage and am working on submitting my application. I'm finding it very difficult to summarise the key points for my application (very much struggling to focus due to a MH crisis) and wondered if you know of any guides on ET forms on the forum that I could use?

Thanks,

Spell Singer

[ULA]

I presume that section 1-7 are all ok when you say you are struggling to complete the ET1 as these ask you to provide details about you, your employer, and the nature of your employment relationship.

Therefore I am guessing it is sections 8 & 9.

Section 8

8.1 Is where you confirm what type of claim you are making, which given you I presume have been dismissed and you have less than 2 years' service you are making an automatically unfair dismissal claim

8.2 This is where you give the background and details of why you are making your claim. As there is not a lot of space on the page for this, a lot of people attach a separate document to the form which is called the Particulars of Claim (PoC).

You need to set this out in chronological order, sticking to the key points which are trying to prove your claim. Given your length of service you will need to prove a) that you are disabled under the definition of the Equality Act 2010 and that your employer was aware of this and b) that you were dismissed because of this.

Section 9

9.1 This is about the remedy that you want and you need to tick the appropriate box.

9.2 This is where you need to set the amount of compensation you are looking for and the detail of how you have come to this calculation. This is sometimes known as a Schedule of Loss (SoL)

Section 10

This is not relevant to your claim as you are not making a protected disclosure that I am aware of from your posts

Section 11

If you are representing yourself then this does not need to be completed

The remainder of the form is quite straightforward to complete.

Hope that helps.

[Spell Singer]

Hi ULA,

My court claim was accepted and is ongoing, there has been a preliminary hearing and there is a 5 day hearing booked for next year and if successful, there will be a further hearing to discuss remedy. I have also filed disability impact statement and supporting medical evidence.

Witness statements are not due until later this year, and documents have now been exchanged for the bundle to be agreed on next month. However, it contains a document about me which contain lies and factual inaccuracies about my behaviour at work, one saying that I bullied the staff member who was bullying and harassing, which I had not been informed of and was not raised with me during my employment or dismissal meeting. I have witnesses who can challenge these accusations, and also have ongoing records of my good performance at work throughout my employment. There is also of course my own report made first which contradicts their account. Also, I reported the bullying at the time of the incidents occurring firstly to management and then to HR, and these false accusations aimed at me were only reported by the person bullying and harassing me in a meeting a week after the final incident where they were brought into a meeting about said incident, which I had no knowledge of prior to my dismissal. My question relates to the fact that the claim can be weakened if the employee was likely to be dismissed regardless of disability, and after seeing this document, I'm worried this is the angle they will go by for that (as my performance was good so they wouldn't be able to say I would have been sacked for any other reason), but would that be taken into account by the judge if I myself were never made aware of these accusations because they were not raised with me in my dismissal meeting or otherwise?

Also, I am going to request further documents from the respondent, but can I ask for notes or emails if I don't know they exist - for example, can I ask for 'any notes from when I reported incident to HR over the phone?', or is that too vague/guesswork-y from my end to be considered an appropriate request?

Am I also allowed to ask for a copy of my own absence records, and absence records of other colleagues, to show comparable sickness levels despite me being dismissed for sickness absence levels when arising from disability and the other colleague not being dismissed or receiving disciplinary action when they did not have a disability-related reason for absence, or would that not be disclosed because it is information about another employee? This would be to help my case by showing that I was treated differently for my absence compared to colleagues without disability.

I will be requesting other undisclosed documents as well and giving 14 days for them to gather and send the evidence.


Thank you for your help.

[Spell Singer]

There was another report about me from another colleague which contained factual inaccuracies as well about a day I left work early due to illness - is it worth me requesting CCTV evidence from the respondent which would then discredit this report?

[ULA]

You need to make sure you are specific about what you want and the media it covers, i.e. emails and the relevance to your claim when requesting the disclosure. You will however not be given access to personal sensitive information of other employees e.g. their absence records.

What you have to remember is that one of the factors in the respondent coming to their decision to dismiss is reasonableness and the Judge will be considering that, given all the facts surrounding your dismissal, was their decision to dismiss and the process followed reasonable.

If there are documents that you feel are factually incorrect that are being submitted into the bundle by the respondent, then you will need to deal with this is the correct chronological order in your witness statement and by reference to the page of that document in the bundle.

[Spell Singer]

Okay thank you. I am also now considering taking legal action over their non-compliance with a Subject Access Request I raised last year, as they responded but it's now come to light (since receiving the respondent bundle), that there was a substantial amount of significant information withheld from the SAR, and it's all suspiciously linked to the events surrounding and leading up to my dismissal.

I would plan to firstly complain to the respondent's data protection officer, and then report to ICO for investigation before bringing the claim to court. I am aware that unlike the ET, I'd need to pay for such proceedings. My pressing concern is that, if I write a complaint to the respondent about that, that it will deter them from disclosing the further documents I've asked for in line with duty of disclosure for the ET, as that would only more so prove that they had documents that they didn't disclose in the SAR. Would it be best to wait until I receive an answer/the documents I've requested for the ET first and then complain to DPO about GDPR non-compliance to d? Or would it be better to get that complain in so that I can also put that forward as evidence for the bundle and show the ET their misconduct? It's a bit of a rock and a hard place, I feel...