Former employers failure to disclose, please help x

[Eloise01]

Re: Former employers failure to disclose, please help x

Ah sorry - I didn't see the third post in this series. You will have already guessed from my previous reply, which I wrote without reading this - I am sorry but I think you are wholly and entirely screwed. He had that conversation with the client - and unless he plans to commit perjury in a court of law, he is going to have to confirm that he did. Sorry - I agree that that was gross misconduct. The employer is entitled to depend upon the evidence provided to them by the client - and whilst there may be slight variations in what is the truth of that conversation, your vertsion of that conversation would sustain a dismissal for gross misconduct. If they offer to settle, take it. But I can now see why they are refusing to budge.

[Phill]

Re: Former employers failure to disclose, please help x

thanks eloise dad said he would return to work just not in the warehouse, he also wrote 2 letters concerning health and safty which his employer ignored we have copies of text messages showing he said he was going home because he felt ill not going home because he had had enough, surly if you have the responsabilty of your health and safty and others and your employer has done nothing regarding this then what options do you have they didnt do any risk assesments in the 2.5 yrs dad was there and he was genuinly concerned. i do really apreciate your honesty eloise i know its dificult to respond when you only hear one side but he went to return to work and they suspended him, surly if a lorry driver thinks his lorry is not safe to drive can he be sacked for refusing to drive it?

[Phill]

Re: Former employers failure to disclose, please help x

dad didnt phone regarding the argument he always phoned if he wasnt at work because he was the only one with access to passwords ect and everthing was run on a live system so people would need access to the system his boss had phoned the customer asking for access which only dad and the customer had it was this call the boss made which informed the customer dad had left dad did what he always did even when on holiday he would phone them so they could contact him because during a normal working day they would be incontact with each other tens of times,

[Eloise01]

Re: Former employers failure to disclose, please help x

Sorry - I slightly misled you by not having the correct information in front of me. I assumed (because I hadn't seen #44) that the claim of dismissal was around his having walked out - i.e. did he or did he not resign. Post #44 clarified this - the employer is not relying on that, since they agreed to "set aside" the "resignation". Your father returned to work on Tuesday. The employer began disciplinary proceedings for (a) inappropriate conduct with a manager in that he got into an argument and walked out (that's a paraphrase - I don't know exactly what the charge was but that's the ballpark), and (b) gross misconduct for making an allegation to a client of the employer that the employer was disregarding health and safety and did not have space for their business (bringing the employer into disrepute). It does not matter whether everything your father says about health and safety is right or not - the tribunal will consider none of that because in law it isn't relevant. Your father was, I am sorry to tell you, guilty of what he was charged with. Regardless of the circumstances (although this did not result in the dismissal) shouting at your manager is not an accepted method of dealing with workplace issues. And you do not ever tell a client about internal business and issues in the workplace - that could lose the employer the business and people are sacked for a lot less than what he said!

In my view, unless you have better grounds than this, you will lose. You are making the classic mistake - you are assuming that the tribunal will listen to your dads story, side with him and decide that the employer should not do what they did. A tribunal does not do that and cannot do that. They have one thing to consider and one thing only. Did your father tell a client that the employer disregarded health and safety etc. He did. It was wrong to tell the client this and it was certainly gross misconduct. Would dismissal be within the range of outcomes that the employer could reasonably consdier for doing this? Yes, it was. Sorry, but whether your dads view of H&S was right and whether the employer did or didn't do anything, and whether the employer was or wasn't right to do nothing - the entire of that is irrelevant in law.

[Phill]

Re: Former employers failure to disclose, please help x

i will break it to him gently, thanks again i appreciate the time you have spent on this and will let you know what happens

[Eloise01]

Re: Former employers failure to disclose, please help x

I am still hopeful that they may offer to settle - it's far from too late for that and the tribunal will cost them money. But you need to be realistic about this in terms of expectations of what they may offer - if he needs a reference then go for a good agreed reference in preferance to money (I mean as well as money, but the reference is worth more if you are still wanting employment). Please bear in mind too that I am still working on part of the story - I assumed you had reason to to confident and let that slide, which perhaps I should have been more forthright and not let you get away with that for so long. There may be a devil in the detail that may help your case - but it would need to be in relation to the disciplinary process or the actual dismissal itself. And it sounds like the employer was hedging their bets very well - they did it just right in getting him back and then going for a disciplinary, which suggests to me they had legal advice from that point.

Lawyers are employers too, and to be honest, the "backstory" simply wouldn't have occurred with me, but I have to be honest - if any employee bad mouthed us to client, even with grounds, then they would have been dismissed. The correct thing for them to do would be to raise concerns or issues with us, and if we ignored matters which were legal obligations (like H&S) then that is what the whistleblowing legislation is for. I am sorry, but good employer or bad employer, you would go a long way to find one that wouldn't dismiss for this sort of thing.

[Eloise01]

Re: Former employers failure to disclose, please help x

PS. I have just been re-reading the last posts to see if I could find any loopholes, which I am afraid I didn't. But on doing so I realise that I read straight past the "extraneous fact" of you mentioning that you had phoned your father to say that your cancer had returned. My bad, and I apologise. I am afraid that I have been in this business too long (although I am retired now - early retirement, I stress, since I only feel that old!) and have a habit of mentally putting things in two piles - the relevant and the irrelevant. In terms of the case it isn't relevant, but I wanted to ask how you are?

[Phill]

Re: Former employers failure to disclose, please help x

thank you for asking i hope and think im on the mend i have had tumor removed so fingers crossed from now on

[Eloise01]

Re: Former employers failure to disclose, please help x

I am a firm believer that attitude may not fix everything, but it's a big contributor, and you are obviously a fighter - so that's very hopeful.

[Phill]

Re: Former employers failure to disclose, please help x

Well thank god that experience is over, as expected after your comments Eloise we sadly lost,but dad has got through it ok and is now looking forward so on wards and upwards, I would like to take this opportunity to thank you Eloise for all your advice and comments not always what i wanted to hear (in fact never) but you as many others on this great site do give up your own time to help and offer comments to those that ask,everyone is aware of the costs involved in getting legal advice whatever the topic is, but thanks to people like yourself and sites like this more average jos are getting fair honest answers without needing to remortgage the family home,so thanks to all especially Eloise and keep up the great work. :beagle:

[Eloise01]

Re: Former employers failure to disclose, please help x

Thank you for letting me know. I am obviously disappointed to be right, but unfortunately once the facts were established there really wasn't any other conclusion to be had. I wouldn't worry about not liking my advice - nobody ever does, or, at least, it's rare they do. I hope that things will now improve for both you and your dad, and you can put this all behind you. If dad is looking for future employment, then join a union - that way you might not like the advice any better, but you will get proper legal advice without a mortgage!

[Phill]

Re: Former employers failure to disclose, please help x

i hope you took my comment about liking your advice as tongue in cheek Eloise that is how it was meant, thanks again x

[Eloise01]

Re: Former employers failure to disclose, please help x

Oh I did. People who don't like my advice usually call me names! That makes it easy to spot the difference!

[charitynjw]

Re: Former employers failure to disclose, please help x

On reading this thread, it is a clear (& painful) reminder to me that personal involvement & emotion often cloud the issue.

There is a world of difference between that which we consider to be 'fair', as opposed to that which is legally correct & permissible.

With the forthcoming changes in charges for ET claims, it is more important than ever to seek good, impartial advice.

You certainly received that from Eloise01.

[kevjampip]

Re: Former employers failure to disclose, please help x

hi im currently in the same position, my tribunal starts in 2 days time and my former employers are not giving me any documents either, this in turn can only go against the employers at the tribunal as the employers will have been made aware that any documentation should be given to the other parties at least 7 days before the hearing begins, so you may find they will hold onto the documents til a week before the hearing is due to start, if the dont give you the documents until the day, which they must do if its an unfair dismissial case then april 2012 it is a judge who sits alone, then you and your employers are required to take 4 copies of all documentation. this is often the case as employers will try and drag this out for as long as possible, but again every case is different, if you have a lawyer involved ask him/her to request the documents, again without knowing the background of the case this is all i can suggest at the moment