Help - really worried

[judgemental24]

Re: Help - really worried

I do not wish to be blunt but if you are just off your 2 years service then they can terminate your contract of employment and it will not be unfair/wrongful dismissal

The first two years of employment are nothing more than a probationary period

Making a protected disclosure will not make much difference in this case as you would still be withing the 104 weeks service

They will simply say your performance was an issue for the dismissal, not the protected disclosure

[auntycabbage]

Re: Help - really worried

Hi

Thank you for responding. I disagree with you. I feel the way this matter was rushed through was indecent haste and my union agrees. What I am supposed to have done would not stand up at a tribunal and certainly does not amount to 'bringing the employer into serious disrepute'. I can also link the protected disclosure to the way I have been treated since - in terms of detriment - this was admitted in statements that have come out of the investigation when a trustee admitted to not investigating my concerns because she did not believe me. That is no excuse. My colleagues stated they felt differently towards me, I had caused rifts in the team etc. I know I have been dismissed because I made a protected disclosure. I did not do what I am supposed to have done - inform a clinical supervisor of my manager's inappropriate relationship with a colleague - and the clinical supervisor admits to waiting 15 weeks before telling my manager about this. Which is strangely timed to coincide with me over hearing her asking my colleague for sex in the room next door to me when we were on a company residential. I told them both the next morning that I had heard everything in the room but was not specific and the next thing I know, I am dismissed on some conspiratorial charge that is absolute nonsense.

[auntycabbage]

Re: Help - really worried

If an employee is dismissed after 1 year and 51 weeks service without notice (of if applicable, 51 weeks), and in circumstances which do not permit summary termination for gross misconduct, the Tribunal can add the one week statutory notice, giving the minimum one year’s service for an unfair dismissal claim. The last day of employment would then be the date when proper statutory notice would have expired.

[judgemental24]

Re: Help - really worried

I will now retire

I am afraid in my own professional opinion you have no case to put before a Tribunal.

Even though it is very rare for costs to be awarded if you lose at a Tribunal, if the judge advises at the case management telephone conference to reconsider, and you carry on despite his advice, they can be considerable.

I suggest you seek advice from an employment solicitor before considering a claim.

You have three months less one day to involve ACAS and the Tribunal service from date of dismissal

[auntycabbage]

Re: Help - really worried

Thank you. I feel I have a strong case and clear evidence of bullying, harassment and suffering victimisation as a result of whistleblowing. All people refer to this in their statements from the investigation. My manager actually put it in her grievance and mentioned my latest 'actions' as a 'pattern of behaviour' stemming from the concerns I raised in January. If that is not an admission of detriment, I don't know what is. I will fight this as far as is sensible. You have worried me now. She simply cannot get away with her behaviour towards me over the past 2 years - and they have responsibilities as a charity to manage things safely and exercise a duty of care - but they did not. Surely you don't have to be overtly dismissed because of whistleblowing but can demonstrate their real motives for an ET?

[FlamingParrot]

Re: Help - really worried

I do not wish to be blunt but if you are just off your 2 years service then they can terminate your contract of employment and it will not be unfair/wrongful dismissal

The first two years of employment are nothing more than a probationary period

Making a protected disclosure will not make much difference in this case as you would still be withing the 104 weeks service

They will simply say your performance was an issue for the dismissal, not the protected disclosure

In principle two years service are a requirement but so is being an actual employee as opposed to self-employed/freelancer. However, I've just found out I won a preliminary hearing to establish whether the ET had jurisdiction to hear my case or not as I invoiced my employers using a limited company, yet the judge ruled in my favour and the ET WILL hear my case. :whoo: :whoo:

I'd have thought something similar would apply to a situation where the employer dismissed just days before the two years, which could be construed as an attempt to beat the calendar.

[teaboy2]

Re: Help - really worried

Dismissal as a result of discriminatory action for making a protected disclosure is automatic unfair dismissal, so the 2 years service is not a requirement to take it to tribunal! And if i recall the OP did make a disclosure on health and safety grounds which means they are protected by statutory law to not be dismissed or treated detrimentally as a result of said disclosure!

[MissFM]

Re: Help - really worried

I do not wish to be blunt but if you are just off your 2 years service then they can terminate your contract of employment and it will not be unfair/wrongful dismissal

The first two years of employment are nothing more than a probationary period

Making a protected disclosure will not make much difference in this case as you would still be withing the 104 weeks service
:hand: I'm sorry but I think this is incorrect
They will simply say your performance was an issue for the dismissal, not the protected disclosure

See here: https://www.gov.uk/whistleblowing

Whistleblowing (which includes concerns such as health and safety as raised by AuntieCabbage) is a protected characteristic and as such does not require two years service for a dismissal to qualify as automatically unfair.

AuntyCabbage - FWIW, I'm with you all the way. The behaviour you describe stinks to high heaven - and I think Teaboy is absolutely right when he says that charities in general (or the third sector as we are now to call them) have got way above themselves in the way they treat both employees and funds raised for vulnerable beneficiaries.

I'm no expert on employment law but I hope to high heaven that you win - and you will find plenty of expertise on here to help and support you all the way. Go for it!

sorry - crossed with Teaboy who is, again, right! x

[judgemental24]

Re: Help - really worried

I think we are missing the point

The employer will never admit that the dismissal was through a protected disclosure as that will be corporate suicide

"making inappropriate and unfounded comments and using inappropriate language and making inappropriate accusations against another staff member"

What those allegations are have not even been released yet so anything else is just speculation at the moment.
i see this at the moment as nothing more than going through the normal disciplinary process for that allegation, not a protected disclosure

As i see it the dismissal is through allegations made about other things not connected to the protected disclosure withing the 104 weeks service, so dismissal cannot be wrongful or unlawful

[MissFM]

Re: Help - really worried

I think we are missing the point

The employer will never admit that the dismissal was through a protected disclosure as that will be corporate suicide

As i see it the dismissal is through allegations made about other things not connected to the protected disclosure withing the 104 weeks service, so dismissal cannot be wrongful or unlawful

I don't think we are missing the point. There do appear to be concerted attempts to misdirect - and of course no-one's going to state openly that the dismissal is for unlawful reasons. The point, though, is that the evidence points to extreme disingenuousness surrounding the process.

[judgemental24]

Re: Help - really worried

A tribunal like any other court requires evidence of wrong doing. That is normally supplied through grievances made etc by the employee, or showing direct causation

I am sorry but i can see no direct connection between making a protected disclosure and the allegations made on another matter that resulted in dismissal. The Tribunal will probably see it that way if it ever came to trial. Most of these things are resolved before a hearing anyway through the appointed mediator

Not to mention paying out £1200 to go to a tribunal with no guarantee of getting it back

Who did you make the report on the protected disclosure to??

[FlamingParrot]

Re: Help - really worried

I am sorry but i can see no direct connection between making a protected disclosure and the allegations made on another matter that resulted in dismissal. The Tribunal will probably see it that way if it ever came to trial. Most of these things are resolved before a hearing anyway through the appointed mediator

Not to mention paying out £1200 to go to a tribunal with no guarantee of getting it back

Who did you make the report on the protected disclosure to??

The OP may qualify for fee remission and initially all you have to pay is £250 to submit the claim, the large payment is only for the final hearing and many claims do not progress that far because employers often do decide to settle on a commercial basis before reaching that stage. Issues such as whether the OP's case should be heard despite being a few days short or whether that doesn't matter due to the protected disclosure element would be decided at a preliminary hearing and there's no extra fee to pay for a preliminary. The whole process takes quite a long time and the employer may well crack up and settle before payment for a final hearing is required, this isn't likely to be till next year.

It would be a good idea to find legal advice, law clinics do pro-bono work. This is a good place to find a law clinic: http://lawworks.org.uk/clinics :thumb:

[teaboy2]

Re: Help - really worried

A tribunal like any other court requires evidence of wrong doing. That is normally supplied through grievances made etc by the employee, or showing direct causation

I am sorry but i can see no direct connection between making a protected disclosure and the allegations made on another matter that resulted in dismissal. The Tribunal will probably see it that way if it ever came to trial. Most of these things are resolved before a hearing anyway through the appointed mediator

Not to mention paying out £1200 to go to a tribunal with no guarantee of getting it back

Who did you make the report on the protected disclosure to??

I think you will find that the standard of proof in most tribunal cases, except discrimination for protected characteristic, is "balance of probability" - The burden of proof however falls on the employer to prove the dismissal was fair, and that means proofing the OP " Brought the organisation into disrepute by making inappropriate and unfounded comments and using inappropriate language and making inappropriate accusations against another staff member" - Which will be no easy task, especially as its likely mostly hear-say, and therefore neither provable either way as to if it said act was committed or not - Or more likely a direct reference to the protected disclosure itself that the board later decided to handle badly and accuse OP of making up the allegation against the line manager. But then you have the allegatio op said she caught manager and colleague wiping themselves down after sex, which just so happened to be about same member of staff (line manager), who was no doubt not happy about being accused of HS breaches and likely made up the allegation in collusion with his colleague or board even to cover things up and get rid of the OP - Helps to take note of that facts given in OP's posts, specially the first one. You then also have the fact it was made known she was dismissed prior to disciplinary by comments made to OP by colleagues and by the fact they cleared out her desk.

So balance of probability suggests 1 - Employers made false trumped up accusations in response to her protected disclosure and 2 - This is likely and only explainable reason as to why the dismissal was clearly predetermined as per the evidence suggests - Therefore the employer failed to discharge their burden of proof as to the dismissal being fair!

@auntycabbage - Was the Health and safety executive involved if not bring them in to it now! Don't worry if you didn't bring them in back in January as protected disclosure was made to the board, so your still protected - problem is the board see you as a trouble maker and want to get rid off you as a result, which on balance of probability is the only reason for your dismissal and way you were treated on being suspended!!

I also do not see how evidence of wrong doing by the employer, is supplied via grievances made by the employee! Such evidence comes from how the employer acts!

[judgemental24]

Re: Help - really worried

I can understand what you are saying and rightly so, in any civil action the process is done on the balance of probabilities, not reasonable doubt.

Employment law, though civil is different again. All that is required to go into a disciplinary is that the employer has a "Reasonable Belief" the transgression occurred, not absolute proof in reaching a decision or sanction.

It is how you define "Reasonable" and the overriding objective. That can only be ultimately be made by a tribunal when deadlock between employer and employee on what is "Reasonable " action.

People are under the impression these tribunals are for the employees, they are not as only a small amount of decisions go the way of the claimant. I will agree most are decided through mediation and consent agreements. Tribunals are always stacked in the employers favour, never the employee.

It is nice to have a civilized debate with a difference of opinion, not an echo chamber mentality. We cannot learn off each other if we all read off then same hymn sheet

[teaboy2]

Re: Help - really worried

I can understand what you are saying and rightly so, in any civil action the process is done on the balance of probabilities, not reasonable doubt.

Employment law, though civil is different again. All that is required to go into a disciplinary is that the employer has a "Reasonable Belief" the transgression occurred, not absolute proof in reaching a decision or sanction.

It is how you define "Reasonable" and the overriding objective. That can only be ultimately be made by a tribunal when deadlock between employer and employee on what is "Reasonable " action.

People are under the impression these tribunals are for the employees, they are not as only a small amount of decisions go the way of the claimant. I will agree most are decided through mediation and consent agreements. Tribunals are always stacked in the employers favour, never the employee.

It is nice to have a civilized debate with a difference of opinion, not an echo chamber mentality. We cannot learn off each other if we all read off then same hymn sheet

Yes reasonable belief to dismiss, but if they either did not follow the disciplinary procedure correctly or fairly, or don't have the evidence to give them reasonable belief, then it makes not difference as the dismissal would be unfair, and they would need to prove the grounds for dismissal were fair (and the disciplinary process was fair) and gave them reasonable belief - Reasonable belief is based on balance of probability as well.

So whilst at tribunal, the standard of proof is balance of probability, not reasonable belief, as reasonable belief is one of conditions for dismissal they have to prove they had, yet having it doesn't itself make dismissal fair! The tribunals job isn't just to decide the case based on the employees alleged actions but on whether the employer acted fairly and reasonable and not in breach of the law, which in this case, the balance of probability indicates they did breach the law in regards to protected disclosures! Also the evidence they have against OP is mostly hear-say, took 15 weeks (3.75 months) after alleged incident to be reported to OP's employers, that means its likely that just after they finished investigating the protected disclosure the alleged incident is alleged to have occurred, given the protected disclosure was made in January and op suspended on 3rd July, meaning the timing of the alleged incident is wholly convenient for the line manager i.e. protected disclosure probably took a month to investigate and was likely disclosed mid way through Jan or towards the end of jan, alleged incident happens end feb, 4 months down the line and your in June, so alleged incident occurred just after line manager was cleared in the protected disclosure! But the tribunal will want to know why it took just under 4 months to report the alleged incident, if it was so grossly offensive, they will also want to see a copy of the line managers colleagues notes and work diary (since that was mentioned to have contained the notes) - but we all know they could have been written long after the alleged incident and therefore fabricated!

You also have the employers conduct and actions after dismissal, informing colleagues the OP was no longer with the organisation, clearing out the OP's desk, therefore the employers actions and the time it took for the alleged incident to have been reported, indicates this is nothing but a orchestrated and fabricated campaign to get rid of the OP. As they had clearly decided the OP was dismissed from the moment she was suspended, prior to any investigation or disciplinary! Without an investigation or disciplinary prior to dismissal, then there is no way they had grounds for reasonable belief, as they clearly didn't carry out an investigation as they dismissed her prior to carrying one out.

And i disagree with you in saying the tribunal is in favour of the employer, that is not the case at all. The tribunal is there so employees can seek justice against employers for the employers unlawful action against the employee. The problem is most employees don't seek advice on employment law prior to issuing a claim, and therefore go in to it thinking they have a claim when in fact their employer acted reasonably and fairly. A lot of claims are brought due to vindictive behavior of a vengeful ex employee's. But most cases are loss, due to the employee lacking understanding of law, and not preparing their claim very well as a result of lack of understanding of law.