Dismissal advice

[Greg123]

Hi guys,

I've been dismissed from my job and I'm thinking about taking my case to the tribunal but would appreciate your take on it.

My employer had performance issue with me. They held performance review meetings with me for few months. In the beginning of March a meeting was organised so that I could explain my poor performance before being given a written warning.

At the meeting I explained that I had a lump in the neck which I worried could be cancer and that my sister and grandma had cancer. It wasn't cancer luckily. I said I was under stress and it was affecting my work. I was given a warning anyway.

A week later I discovered that I had been making a mistake in using the computer system at work. And that's why I wasn't performing. My manager never told me about it but instead he acussed kept accusing me of poor performance for three months. I was never taught how to use the system either. From that day the company stopped holding regular performance meetings with me.

I appealed against the warning but my appeal was rejected on quite spurious grounds of my communication. After that I was unable to cope with the situation psychologically and went on a sick leave due to anxiety and depression.
My company dismissed me in April while I was being off sick - few days before my two year service for them.

To take my case to the tribunal I will need to prove there was a discrimination arising from disability.
I've had depression in the past and I feel my company ought to have done whatever they could to find out if I was suffering from it but they didn't do anything.
Having this depression caused me to be confused and I couldn't concentrate to do my job properly but my work has improved significantly even before I discovered the mistake I was making. After I told my employer about my psychological state they stopped organising performance meetings and started doing everything to dismiss me before the two year period would pass.

I know I need to go to ACAS first but what do you think are my chances of winning this in the tribunal ?

I'm also worried about the reference from them. I was dismissed for poor performance even though the performance was poor only because I wasn't using the system correctly. So if they say "Dismissed for Poor Performance" it won't be true.

Thanks for reading

[teaboy2]

Re: Dismissal advice

Hi Greg

Sorry no one had yet picked up on your thread, we're normally more on the ball than this.

You say you were dismissed whilst of sick for poor performance, dispute previous being given a warning where your appeal was rejected - I have some questions for you:

Please can you provide dates and discriptions in chronological order of events, i.e. performance reviews held and outcomes, date of discirplinary and appeal (along with copy of your appeal letter or grounds of your appeal) date you discovered you were using the computer system wrong (did you point out lack of training to the employer), date you told the employer you were ill, date you were signed off ill, date they issued new disciplinary proceedings against you etc?

Have you appealed the dismissal yet?

In any disciplinary process was their and investigation, where you invited to attend in writing and advised in writing of your right to be accompanied?

What was the computer system/program you were using and was the mistake the same each time and the reason for your performance reviews?

The employer does have a duty of care, towards all staff and that includes ensuring they are not suffering from any mental or physical illness and if they suspect they are they should speak to the employee about it. However its proving they suspected anything, though the worry or possibly having cancer would have been a clear sign to myself that you may be suffering mentally as a result and likely stressed with worry as well with work!

[stevemLS]

Re: Dismissal advice

From the information given it seems to me that the chances of an appeal succeeding are low.

However, answee teaboys questions, whilst it is of course correct to sat that reasonable adjustments should be made iks as a disability, it can only do so if there were aware of your depression

[teaboy2]

Re: Dismissal advice

I agree with you [MENTION=48758]stevemLS[/MENTION] on chances of the Appeal being low from what the OP has said so far, and regarding whether the employer knew or not of any illness (disability). Though a reasonable mind would have suspected it and should have picked up on it, in my opinion, but that point alone is not much to go on on its own.

Whats worse is the less than 2 years employment, so all we can do is ask questions and try to determine if the employers action were discriminatory or not. If they were, then the 2 year qualifying period would not apply when taking it to tribunal. But if they weren't then theres no right to bring a tribunal claim due to the 2 year qualifying period.

[Greg123]

Re: Dismissal advice

Here is the order of events:


December 2014 - I receive first report on my performance.


January - March - There are performance reviews being held. They were planned to be held every two weeks but in reality the were held less frequently. I don't know the exact dates. The outcomes were such that I was improving.


02 March - I'm told that there will be a disciplinary meeting on 5th March. I ask for the evidence but my line manager doesn't want to tell me because it might affect the outcome of the meeting.


05 March - Disciplinary meeting when I'm given a written warning. During this meeting I tell my employer that my psychological state isn't good because of the lump in the neck and cancer history in my family.
We agree to have another review in two weeks time but it never happens.


11 March - I realize I'm using the system wrong. I inform my employer I want to appeal.


The main grounds of the appeal were observing the entire project instead of a small part of it and not having been trained on how to use the system.


19 March - I deliver my appeal letter.


25 March - A project at work finishes. I was allowed to work on it even though I was working 10-12 a day. This furher contributed to my depression.


25 March - I was told verbally that my appeal meeting will be held the next day. I received no letter or confirmation in writing but only a verbal information.


26 March - At the appeal meeting the HR manager explains that I have a right to be accompanied. (This is the first time I am told that I can be accompanied but I agree as he leaves me no choice) I describe the problem and I'm asked question by a manager who's suppossed to make the decision. He joined the company recently and can be influenced by his new bosses and effectively it's impossible for him to be impartial. He's also my line manager's boss. They took 20 minutes to make a decision - not enough to evaluate my performance even though I asked him to check my performance before and after 11th March. My appeal was rejected and I was accused of miscommunication with my manager.


27 March - I am given a letter by my line manager asking me to attend a disciplinary hearing on Tuesday 31st March. I go home early complaining of pain in the chest.


30 March - I deliver a sick note that says I'm unfit for work until 16th April.


8 April - I'm dismissed in my absence with pay in lieu of notice.


13th April - I appeal against the dismissal


I don't think there was an investigation into why I wasn't performing. My manager raised issues and I was given a warning but the company (apart from my manager) never investigated my performance. The only investigation I was told of happened after my dismissal hearing.
I was invited to attend in writing and advised to be accompanied apart from the meeting that took place on 26 March.


The system I was using was showing all the tasks for the entire project. My team was working on it by doing specific tasks. I was looking at the entire project and wasn't aware which tasks I should be doing. Yes, the mistake was the same. Everything I was accused of can be explained by this mistake.


After I told my employer what the mistake was (and indirectly pointed finger at my manager) they stopped holding reviews with me. They gave me only a written warning but not a final warning and the reasons for dismissal weren't serious enough to not give it.
I feel that since I indicated to them about my depression on 5th March they started going against me. I wasn't given time to improve even though we agreed there would be another performance review. I also think my manager knew I wasn't using it correctly but he kept creating performance issues and accusing me.

[SPQR]

Re: Dismissal advice

When was your start date of employment (it may make a difference)?

[Greg123]

Re: Dismissal advice

17th April 2013

[SPQR]

Re: Dismissal advice

Unfortunately you don't have two years qualifying service and can't claim for unfair dismissal (there is an exception that might have applied depending on your start date, but unfortunately it does not).

Your disability discrimination claim will depend on if you can prove that your employer should have known about your disability. You may have difficulty proving that I'm afraid.

[stevemLS]

Re: Dismissal advice

In general terms, employers aren't expected to hunt out disability and I'm afraid in my view your condition doesn't come within the definition of a disability in that you haven't provided evidence that it has significant impact on daily activities nor that it is expected to persist for a year.

The first indication that you might be suffering ill-health was in March when you said that your "psychological state" wasn't good. That, though, isn't depression.

Did you produce any medical evidence at any stage?

[Greg123]

Re: Dismissal advice

SPQR - what's the exception you're talking about ? I've never heard of it. I'd appreciate if you told me.

The way I see it is that they wanted to get rid of a person who couldn't perform because of his mental state (that they themselves created by constant harrassment with spurious performance issues) instead of trying to provide help.
On 27th March my line manager informed me that the letter they gave me was prepared before 11th March and my appeal only delayed giving it to me. That indicates to me that I was guilty within few days after giving me a written warning (5th March). If you compare that with 3 months (December - March) it seems obvious that they didn't like what they heard on 5th March.
Also, their conduct after 11th March indicates they were aware, at least to some extent, about my issues. Otherwise they would have followed their disciplinary procedure.

When I said that my psychological state wasn't good I was very emotional and I provided medical evidence about my family and wanted to provide evidence about myself but they said they didn't need it.

[teaboy2]

Re: Dismissal advice

I think you need to speak to ACAS or an employment lawyer (check your home insurance as you may be entitled to legal advise through it)

I think you have little chance of sucess to be honest.

Performance reviews and disciplinary for poor performance are not deemed harassment, they are a necessities to ensure reasonable standards of employee performance - You even admitted to you had been making a mistake (though realised a week after receiving a warning for poor performance) on the computer system all the time you were partaking in performance reviews.

Then when your appeal was rejected and after receiving a second letter to attend a new disciplinary procedure you went off work sick!

You were then rightly or wrongly dismissed on the 8th april despite having a valid sick note signing you off until the 16th april

What i'd like to know is why were you facing a second disciplinary, and what date was the hearing set for and why you didn't attend or if you wrote asking for date to be rearranged?

[Greg123]

Re: Dismissal advice

The reason why I called the performance reviews a harassment was because my line manager must have had full knowledge of what the problem was. For three months he was managing the project using the tool that I wasn't using correctly. And had a full overwiev of what I was doing but he never said anything to me. I was never trained in using it either. At the same time he told another employee how to use it correctly. He kept undermining me in the eyes of the management making everyone think I was incompetent.
It's not ok to try to ensure a resonable standard of employee performance while his workload is much higher than it should be (because he doesn't know how to use the system) and not training him in basic tools for the job or ensuring he's using them correctly. No performance review can ever achieve it's goal in such situation. The only thing that was achieved was my stress.
I was told in a letter the second disciplinary was because of my performance. They ignored my previous explanation and still kept saying I was performing poorly but this time they were trying to find any tiny piece of evidence against me because I'd improved a lot since 11th March. I asked for evidence and allegations against me before the meeting but they refused. Yes, I wrote and asked for the date to be re-arranged until I felt well enough to be able to defend myself.
The hearing was set for 7th April. I didn't attend because I felt I was unable to defend myself effectively due to all the stress.

[matt3942]

Re: Dismissal advice

Having read through the thread I think we need to remember that sometimes employers engage in poor practice, which may include them being complete jerks. Thankfully being a jerk isn't against the law. I think your best option is to put this behind you and work for a nicer employer.

- Matt

[teaboy2]

Re: Dismissal advice

The reason why I called the performance reviews a harassment was because my line manager must have had full knowledge of what the problem was. For three months he was managing the project using the tool that I wasn't using correctly. And had a full overwiev of what I was doing but he never said anything to me. I was never trained in using it either. At the same time he told another employee how to use it correctly. He kept undermining me in the eyes of the management making everyone think I was incompetent.
It's not ok to try to ensure a resonable standard of employee performance while his workload is much higher than it should be (because he doesn't know how to use the system) and not training him in basic tools for the job or ensuring he's using them correctly. No performance review can ever achieve it's goal in such situation. The only thing that was achieved was my stress.
I was told in a letter the second disciplinary was because of my performance. They ignored my previous explanation and still kept saying I was performing poorly but this time they were trying to find any tiny piece of evidence against me because I'd improved a lot since 11th March. I asked for evidence and allegations against me before the meeting but they refused. Yes, I wrote and asked for the date to be re-arranged until I felt well enough to be able to defend myself.
The hearing was set for 7th April. I didn't attend because I felt I was unable to defend myself effectively due to all the stress.

Greg, complacency or ignorance and/or lack of effort on your managers side doesn't amount to harassment!

You say you were provided no training, but what evidence of this do you have or is it just your word against there's?

Even if it did amount to harassment, the 2 year qualifying period still needs to be met to take this to tribunal. There is only specific exceptions to the qualifying period, and harassment is not one of them unless that harassment was in the form of discrimination of a protected characteristic under the equality act 2010 - You got stressed as a result of the performance reviews, which you said yourself you believe was harassment. You were not harassed because you were stressed or suffering from mental illness you were having to do those performance reviews because you were making an error which you then spotted yourself, which seems to be the single and only point in your defense that you are using. However you weren't dismissed because of that, you were dismissed likely to cumulative performance issues, such as and including attitude towards the manager etc.

Even here you come across as aggressively playing the victim card!

At the end of the day what in a legal sense do you have as evidence to validate your claim of harassment, claim you weren't given basic training, claim the performance reviews were without merit and to support any other instance you think gives you grounds for a claim? But most off all, what grounds to you have for an automatic unfair dismissal claim against them where the 2 year qualifying period won't apply?! As i can not see you having such grounds based on the harassment and performance reviews!

I know its not what you want to hear, but unfortunately the law isn't decided by us! And i know you feel wronged and hard done by and i can sympathize with you there, but i can not see how you would have grounds to bring a claim for your above arguments!


However, the fact they went ahead with the disciplinary knowing you have been signed of sick, and after you had wrote requesting the hearing be rearranged, and the fact no investigation hearing prior to the disciplinary hearing was carried out, may give you grounds for automatic unfair dismissal due to the fact they knew you were signed off with stress, which would amount to discrimination under equality act 2010 as they treated you unfairly in the process of the 2nd disciplinary knowing you were suffering a mental illness. So that is what you need to think about and concentrate on - The rest above that you have been arguing would be merely supportive arguments of the fact you were discriminated during the process of your 2nd disciplinary procedure, which also by the way did not conform with ACAS code of practice!

And i would advise that you speak to ACAS or a lawyer (Check your home insurance if you have any, as you maybe entitled to free legal advice as part of your insurance policy).