What's the time limit for appealing against a disciplinary decision?

[headsgone]

Two months ago I was sacked for gross misconduct by 2nd class mail without any prior warning. The letter wasn't dated and made no mention of any appeal procedure. So I've never contacted them since. I've been with this employer for over 7 years. I wish to contest this at an Employment Tribunal and have been patiently waiting for my final months pay before taking action. The pay never arrived and is now overdue by a month. I have till the end of Aug to put in a claim for unfair dismissal (and withholding final salary). Or so I thought... I've just recently noticed on the ACAS website a download entitled Discipline and Grievances at Work. And on pages 57/58 the following paragraph:

"Appeals
An employee who wishes to appeal
against a disciplinary decision must
do so within five working days. The
senior manager will hear all appeals
and his/her decision is final. At the
appeal any disciplinary penalty
imposed will be reviewed."

How can information so important be tucked away like this? I've looked at lots of websites before, such as Wikipedia, Citizens Advice, Solicitors, Gov.uk, etc, and there is no mention of this 5-day deadline, just the 3 month limit to make claim at an Employment Tribunal.

So is it too late to do anything?

[Johnboy007]

Re: What's the time limit for appealing against a disciplinary decision?

No my friend, it isn't.
The employer has clearly not followed the ACAS code of practice, concerning the disciplinary procedure.
Sacking someone by second class mail is not on.
Second class mail takes longer to get delivered than first class.
Plus withhold any money for the time you actually worked, is unlawful, unless you owe your employer money.
In which case he can deduct it from you final pay.

Deductions from your pay

Your employer isn’t allowed to make deductions unless:

• it’s required or allowed by law, eg National Insurance, income tax or student loan repayments
• you agree in writing
• your contract says they can
• there’s a statutory payment due to a public authority
• you haven’t worked due to taking part in a strike or industrial action
• there’s been an earlier overpayment of wages or expenses
• it’s a result of a court order

A deduction can’t reduce your pay below the National Minimum Wage rate, even if you’ve agreed to it.


If you work in retail (eg shops, restaurants)

Your employer can’t take more than 10% from your gross pay (pay before tax and National Insurance) each pay period to cover any shortfalls.
Example
There’s a shortfall of £50 in your till and your employer wants to deduct this from your earnings.
You’re paid £250 gross per week. Your employer can take 10% of your gross earnings, which is £25.
They must only take £25 one week and then make another deduction from your next pay cheque for £25.
If you leave your job, they can take the full amount owed from your final pay

If you haven’t been paid in full

Speak to your employer first to try to sort the problem informally.
If this doesn’t work, talk to Acas (Advisory, Conciliation and Arbitration Service), Citizens Advice or your trade union representative.
You have the right to go to an Employment Tribunal to get your money.

If you quit your job

Check your contract to see if your employer is allowed to withhold your pay. Normally you’re entitled to be paid everything you earned up to the point you finished.
If you’re forced to resign as a result of your employer refusing to pay you, you might be able to make a constructive dismissal claim in an Employment Tribunal.
The above information is from the .GOV.UK web site.

The important thing to remember is to get all your facts straight and written down.
Contact ACAS as a matter of urgency
You can also call an Acas helpline adviser on 0300 123 1100 (8am-8pm Monday to Friday and 9am-1pm Saturday).
Explain your situation and ask them for advice and also how to make an application to the Employment Tribunal.

It is quite clear that your employer has not followed any recognised disciplinary procedure.
Therefore any such procedure, was absent in your case.

A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal.


Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.


Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination.


As you have worked with them for 7 years, you have the right to go to an Employment Tribunal for 'Unfair Dismissal'.
In the meantime, write to your ex employer and ask for any money that is lawfully yours.
Also ask for a copy of the company's disciplinary, appeals and grievance procedures.
Just what was your alleged gross misconduct?
You can send me a private message if you do not want to disclose it on open forum.
Just make sure your evidence is provable.
Send any letters by first class and signed for mail. Costs under £2.00.
Keep a copy of all correspondence, including dates and times.

[Johnboy007]

Re: What's the time limit for appealing against a disciplinary decision?

headsgone, see below mate.
Get it done ASAP.

Name
Address
Date
Dear Sir,
I am in receipt of an undated letter of dismissal from (NAME OF COMPANY) alleging Gross Misconduct. I received this letter on Monday 2^nd June 2014, having noted that it was sent by second class post.
Having taken legal advice, I now wish to appeal the company’s decision to dismiss me, for the following reasons.
It is my contention that the company have acted, outside of any recognisable and acceptable disciplinary procedures, in that the ACAS Code of Practice, which employers are expected to adhere to state;
Inform the employee of the problem

If it is decided that there is a disciplinary case to answer, the employee
should be notified of this in writing. This notification should contain
sufficient information about the alleged misconduct or poor performance
and its possible consequences to enable the employee to prepare
to answer the case at a disciplinary meeting. It would normally be
appropriate to provide copies of any written evidence, which may include
any witness statements, with the notification.
The notification should also give details of the time and venue for
the disciplinary meeting and advise the employee of their right to be
accompanied at the meeting.

Hold a meeting with the employee to discuss the problem
The meeting should be held without unreasonable delay whilst allowing
the employee reasonable time to prepare their case.
Employers and employees (and their companions) should make every
effort to attend the meeting. At the meeting the employer should explain
the complaint against the employee and go through the evidence that has
been gathered. The employee should be allowed to set out their case and
answer any allegations that have been made. The employee should also
be given a reasonable opportunity to ask questions, present evidence and
call relevant witnesses. They should also be given an opportunity to raise
points about any information provided by witnesses. Where an employer
or employee intends to call relevant witnesses they should give advance
notice that they intend to do this.

I have a statutory right to be accompanied to any disciplinary or appeal hearing, by either a Union official, or a work colleague.
The company have denied me the right of a fair hearing in this case.




The company have not made clear what actions it considers to amount to Gross Misconduct.
My employment contract states negligence with company vehicles is misconduct, not Gross Misconduct.

The company have not paid me for the hours that I have worked, and have made 100% deduction from my final month’s salary
This is unlawful in that, (a) I did not agree to this deduction, (b) it is not required or allowed by law, eg National Insurance, income tax or student loan repayments.
Therefore the company have acted unlawfully in making this deduction.

(4)
In dismissing me, the company have failed to notify me of my right of appeal, and have not given me the opportunity to do so.

Please reply to this letter as a matter of urgency, within 7 days, for which I enclose a stamped addressed envelope.

Yours Sincerely,




Send this by first class signed for, next day delivery (cost about £6.00)
Don’t forget the stamped addressed envelope.
This way they will have no excuse for not answering you.
Copy and paste the letter into word and get it sent ASAP.
If you do not get a reply within 7 days, then we will step this up to Tribunal.
Best wishes,
John.

[headsgone]

Re: What's the time limit for appealing against a disciplinary decision?

Hi John
Thanks for the above reply to my PM to you (I sent you my idea of a letter of appeal to my now ex-employer dismissing me without warning). Your idea of a letter of appeal is completely different to my own and is one that I'm more than happy to use. I sent it via recorded delivery with a SAE enclosed. As the offices are closed at weekends they should receive it by Monday Aug 11. I'll let you know how they respond. Cheers.

[Johnboy007]

Re: What's the time limit for appealing against a disciplinary decision?

Good luck mate..........
Either way, the company must give you what money they lawfully owe you.

[headsgone]

Re: What's the time limit for appealing against a disciplinary decision?

Good luck mate..........
Either way, the company must give you what money they lawfully owe you.

Hi John

Unfortunately, that won't be as much as I thought... my contract states "all wages will be paid monthly in arrears". I took that to mean paid one month in arrears: wages earned in May paid in June. Instead it means May wages paid in May! My ex-employer wrote back saying please clarify as records show that all hours worked have been paid, but we can discuss this next week if you take up our offer of reinstatement: "We have given consideration to your appeal and on further reflection consider that immediate dismissal may have been too harsh."

I will of course write back and apologise about the wages owed claim. I'll also decline their job offer as I don't wish to work for them again. Instead I'll ask for a good reference and payment for 7 years service (in my case 1.5 * weekly wage for each year). Plus 2 weeks unused holiday pay. In other words, pay me as if I'd retired. Won't bother with compensation for loss of earnings as I now have other irons in the fire.

They can't argue with that, can they?

[Johnboy007]

Re: What's the time limit for appealing against a disciplinary decision?

Hi John

Unfortunately, that won't be as much as I thought... my contract states "all wages will be paid monthly in arrears". I took that to mean paid one month in arrears: wages earned in May paid in June. Instead it means May wages paid in May! My ex-employer wrote back saying please clarify as records show that all hours worked have been paid, but we can discuss this next week if you take up our offer of reinstatement: "We have given consideration to your appeal and on further reflection consider that immediate dismissal may have been too harsh."

I will of course write back and apologise about the wages owed claim. I'll also decline their job offer as I don't wish to work for them again. Instead I'll ask for a good reference and payment for 7 years service (in my case 1.5 * weekly wage for each year). Plus 2 weeks unused holiday pay. In other words, pay me as if I'd retired. Won't bother with compensation for loss of earnings as I now have other irons in the fire.

They can't argue with that, can they?

They can mate...........
But hopefully they won't.
Glad the letter did some good, and I too consider a month in arrears to mean just that, same as a week in hand or arrears.
You don't work a week and the they pay you on Friday, they pay the following Friday.
So do check all your wage slips if you have them.
Good luck mate,
John

[headsgone]

Re: What's the time limit for appealing against a disciplinary decision?

Hi John
Quick (?) update: My former employer didn't reply in time to my letter requesting minimum compensation of 11 weeks (1.5 * 6 full years, plus 2 weeks unused holiday pay). So I've started ACAS conciliation which ends on 29 Sept. ACAS first phoned me on 3 Sept and she told me she'd call my ex-employer with my request. I received a letter from them on 8 Sept (again undated and using a 2nd stamp!). In it they wrote they were very disappointed that I no longer wish to be considered as one of their casual drivers (referring to their previous offer of reinstatement). As a "gesture of goodwill" they will pay me what I asked for, as long as I agree that this payment is in full settlement of my employment cessation. I've yet to reply as it appears they think that either a: my job title was as a casual driver, or b: reinstatement is the same as re-employment. I have reasons to believe it's the former (on the odd occasion I called in at the office, as the vehicles were parked 3 miles away, and my name would still be on the wall as a casual worker, and I never got a company phone).

I used to be employed as a casual worker even though I worked full-time hours 24/7. Then in Nov 2013 I signed a contract as I needed a better job title because I was flat-hunting. The contract states that my employment began on 11/12/2007 and I'm employed as a truck/van driver. Contracted hours were 40 per week at a basic hourly rate of £6.50 (the same rate as a casual driver!). Another (new) casual driver also signed full-time when I did. I later learned that he was on £7.25 per hour and he didn't have a 7.5t truck licence! We both worked nights. Day-shift drivers get £7. Before I could demand a backdated pay rise my manager of 6 years was sacked for fraud in Feb this year. Accountants were brought in so I waited a few weeks/months. But then on 2 June I was suddenly sacked by my managing director for "causing" engine damage.

So where do I stand if my ex-employer is under the impression that I was still a casual worker when they sacked me without warning? (I say without warning but two days before the dismissal letter arrived by 2nd class mail a fellow driver told me I'd been sacked and didn't I know?) Should I get the ACAS conciliator to ask them to send me my employment contract (if they still have it), and put in writing whether I was a permanent or casual worker? And also put in writing the hourly rate paid to permanent drivers? The fact that I signed my contract @ £6.50 per hour may mean that they don't have to pay me more because I don't have a right to equal pay anyway. But if they don't have a copy of it they won't know the rate I signed for...

Sorry to ask you all these questions but my ACAS conciliator seems to have gone AWOL. Just one call so far and that was over a week ago

[Johnboy007]

Re: What's the time limit for appealing against a disciplinary decision?

Hi,
You should have a copy of your contract of employment.
If not, then request one showing your signature.
The problem you got with the different wage rates is, that unless the rate for a full time worker is the same across the board, and was a negotiated, collective agreement. Then new employees could start on different rates to what you get.
It is the contract that you need to establish your job description.

[headsgone]

Re: What's the time limit for appealing against a disciplinary decision?

Hi John
I have a copy of my contract but do they still have theirs? Did the rogue manager who got the sack forget to put me on their books? I shall find out.

[Johnboy007]

Re: What's the time limit for appealing against a disciplinary decision?

Let me know how you get on......

[headsgone]

Re: What's the time limit for appealing against a disciplinary decision?

Hi John

ACAS has sent me an email with a COT3 draft for me to approve before they post a copy to be signed. Also in the email they write: "They have requested that a deadline for this offer to be accepted is Monday 29/9/14, after which time the offer is withdrawn." That is the date that ACAS conciliation time is set to end after 1 month, but it can be extended up to 14 days if necessary. Are they allowed to withdraw payment while conciliation could still be in progress?

I've asked ACAS to get them to send me:

P60 2013/14
P45
a copy of the rule that permitted my instant dismissal (to call their bluff as their legal rep told ACAS there was one so I think I've a right to see it. I should have requested the staff handbook as I never did see that)
a copy of my employment contract (just to see if they do have one)

They refused to offer a reference, so there goes any hope of future employment if I fail at self employment. Nice people.

[Johnboy007]

Re: What's the time limit for appealing against a disciplinary decision?

Hi,
I can only repeat what I have already stated.
An employer cannot withhold money that is lawfully yours.
Instant dismissal is usually reserved for Gross misconduct and the company disciplinary procedure (if they have one) should state what constitutes Gross Misconduct.
I hope you get what you deserve mate.
JB

[headsgone]

Re: What's the time limit for appealing against a disciplinary decision?

I hope you get what you deserve mate.
JB

Hi John
I did get what I asked for (apart from seeing the rule that got me sacked, and their copy of my contract) yet still feel they won the battle. But if in future I discover they're passing on false information about me to other employers, regarding my employment status with them and reason for leaving, then another battle will ensue. Until then I'll leave you in peace and thank you for your very helpful advice.