Help - really worried

[FlamingParrot]

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.

The balance of probabilities refers to the tribunal process itself where a decision is made by a judge on that basis. The internal process within a company is something completely different, the people involved may not even know what 'balance of probabilities' means, the may not be acquainted with the ACAS code or the company's own internal procedures. Employers don't always follow the process and that is precisely where their actions can be questioned. I know a few cases where the dismissed employees wouldn't have much of case in terms of the reasons for being dismissed as such (one was actually constructive dismissal as they'd resigned) but they issued a claim based around procedural faults. All were settled by the employers.

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

I'm sorry but in view of recent experiences, I have to disagree with the above, and it's not a hymn sheet I'm reading, it's a judgment.

[judgemental24]

Re: Help - really worried

My latest Employment Tribunal was in July for a Contractual transgression and Section 13 Employment Rights Act. That was settled two days before the hearing by mutual consent and satisfaction.

That was through an Industrial Tribunal, not Employment as the action was instigated in Northern Ireland. The Labour Relations Agency were used as ACAS does not apply in Northern Ireland

[MissFM]

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

Sorry to disagree/nitpick again

The government guidelines on whistleblowing are quite clear on the differences between raising a grievance (which is a matter of personal ill-treatment) and whistleblowing in the legal sense (which is making a public interest disclosure/complaint)

In AuntyC's case (which I clearly find convincing and strong), you only have to look at the timeline to see that the public interest concerns that she raised in a formal letter in January preceded her other troubles with the employer and she refers in her posts to plenty of corroboration that, instead of initiating a formal, independent investigation into her concerns the employer not only dismissed them but appears to have colluded with some staff to engineer the OP's removal.

Again, there is overwhelming evidence that the OP suffered detriments as a direct result of her making her health and safetly concerns known and that she was undermined to the extent that she felt far too intimidated to raise any personal grievances as a result.

The timeline on the allegations leading to the official reason for dismissal is also suggestive.

Talking of which, it also seems blindingly obvious that the kind of banter that accompanies sexual relationships in the workplace can easily be taken out of context and given a malicious slant as has happened here. How can any private remark made between colleagues in the know be construed as bringing an organisation into disrepute?

If the case is well-presented (and I see no reason why it shouldn't be) the narrative (& the evidence) could hardly be more compelling. :colbert: x

[FlamingParrot]

Re: Help - really worried

Quite a bit of money went into winning this one: http://www.internationallawoffice.co...b-01bf871b9f98

Hinton was employed by the university as a lecturer from January 1 1995 to July 31 2003. He raised various grievances in January 1998, November 1999 and May 2001, which amounted to protected disclosures under the act. He alleged that he had suffered detriments as a result of those disclosures. Hinton eventually took voluntary redundancy in 2003 and a compromise agreement was prepared by the university. Hinton took legal advice and the agreement was signed on July 21 2003. The agreement contained a list of possible claims which had been compromised but did not include any reference to a claim under Section 47B.

In October 2003 Hinton brought proceedings under Section 47B in respect of the detriments suffered before the termination of his employment that he had previously raised in correspondence.

The employment tribunal decided that the compromise agreement did not preclude Hinton from pursuing his whistleblowing complaint. The employment tribunal decided that the agreement did not "relate to" the Section 47B proceedings and therefore this claim had not been compromised. The university appealed to the EAT.

[judgemental24]

Re: Help - really worried

It was because of this case law being an appeals tribunal that compromise agreements now have clauses in them that stipulate that no further claims will be instigated against the employer

As always it will be for the claimant to decide if they accept that compromise or not. If they decline then that can be raised with the tribunal as a negative factor if the tribunal considers the settlement proposals were reasonable.

I will dig out my own settlement agreement from last month for comparison

[judgemental24]

Re: Help - really worried

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[judgemental24]

Re: Help - really worried

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[judgemental24]

Re: Help - really worried

SETTLEMENT REACHED AS A RESULT OF CONCILIATION ACTION We the undersigned have agreed:

1. The Respondent shall offer and the Claimant shall accept the sum of Łxx.xxxx in full and final settlement of these proceedings, listed before the Industrial Tribunal under case number xxx/xxxx. 2. The Respondent makes no admission of liability. 3. The Claimant agrees that he is not entitled to receive any payment pursuant to or arising out of the Respondent’s xxxxxxxxx including, but not limited to, a payment in respect of the xxxxx xxx xxxx. 4. The Claimant agrees to refrain from continuing these proceedings against the Respondent. 5. The Respondent agrees to pay the Claimant the above amount by cheque within 28 days of receipt of this duly signed agreement from the Claimant. 6. It is agreed between the Claimant and the Respondent that the terms of this settlement, including the negotiations leading up to settlement, shall remain confidential and shall not be publicised by either party or their representatives save as required by law. 7. This agreement constitutes a certificate in writing as per Article 21A Industrial Tribunals (Northern Ireland) Order 1996.

[FlamingParrot]

Re: Help - really worried

It was because of this case law being an appeals tribunal that compromise agreements now have clauses in them that stipulate that no further claims will be instigated against the employer

I believe the agreements have always had clauses to that effect, maybe they have just become more specific or comprehensive. My agreement from 2004 certainly mentioned no further claims and at the time I took it for granted that entering into an agreement would mean giving up the right to issue further claims against the employer.

It was actually Dr Hinton from the above who drafted most of my letters and took me to a legal advice centre and put forward my case to the solicitor who agreed to represent me in 2003. :yo: He was fully into fighting till the end and put a lot of time, money and effort into it. I admire his dedication to the cause and determination to make a point which most of us haven't got, at least not to that extent.

As always it will be for the claimant to decide if they accept that compromise or not. If they decline then that can be raised with the tribunal as a negative factor if the tribunal considers the settlement proposals were reasonable.

I will dig out my own settlement agreement from last month for comparison

Would be interesting to see what has changed in the last 10 years, although every case is different.

[FlamingParrot]

Re: Help - really worried

SETTLEMENT REACHED AS A RESULT OF CONCILIATION ACTION We the undersigned have agreed:

1. The Respondent shall offer and the Claimant shall accept the sum of Łxx.xxxx in full and final settlement of these proceedings, listed before the Industrial Tribunal under case number xxx/xxxx. 2. The Respondent makes no admission of liability. 3. The Claimant agrees that he is not entitled to receive any payment pursuant to or arising out of the Respondent’s xxxxxxxxx including, but not limited to, a payment in respect of the xxxxx xxx xxxx. 4. The Claimant agrees to refrain from continuing these proceedings against the Respondent. 5. The Respondent agrees to pay the Claimant the above amount by cheque within 28 days of receipt of this duly signed agreement from the Claimant. 6. It is agreed between the Claimant and the Respondent that the terms of this settlement, including the negotiations leading up to settlement, shall remain confidential and shall not be publicised by either party or their representatives save as required by law. 7. This agreement constitutes a certificate in writing as per Article 21A Industrial Tribunals (Northern Ireland) Order 1996.

Was that all? Seems very basic compared with mine, unless there are separate clauses. Mine mentioned neither side making 'disparaging remarks' about the other side and also referred to an obligation on their part to supply an agreed reference in response to any requests, which was typed up as a letter and attached.

[teaboy2]

Re: Help - really worried

Was that all? Seems very basic compared with mine, unless there are separate clauses. Mine mentioned neither side making 'disparaging remarks' about the other side and also referred to an obligation on their part to supply an agreed reference in response to any requests, which was typed up as a letter and attached.

agreed, i see no clause in there to stop claimant bringing further claims either. only that "The Claimant agrees to refrain from continuing these proceedings against the Respondent" and "The Claimant agrees that he is not entitled to receive any payment pursuant to or arising out of the Respondent’s xxxxxxxxx including, but not limited to, a payment in respect of the xxxxx xxx xxxx." which is kinda vague but i assume relates to the same proceedings or monies paid in settlement!

Though to be honest i think we are side tracking and should get back to the issue at hand!

[auntycabbage]

Re: Help - really worried

Hi all

Bit of an update for you. I am just in the process of writing my appeal (a paper exercise as I know it won't be taken seriously). I went to see my union rep today and he seems pretty certain that the union will back me to take the case forward on the whistleblowing angle - the union solicitors are going to look at it anyway - and that's really positive. I just need to firm up that side and find some case law on detriment, which I have already started to do. The disciplinary hearing report recommends dismissal and mentions the following: '---- has less than two years' service and as such the case is considered low risk'. My rep suggested I add in my appeal letter that she 'failed to appreciate the significance of my whistleblowing activities' that will hint to them that I intend to take this matter further without stating I will (if that makes sense).

So that is the next step. I have asked them to pay me what they owe me three times now via email and was told on Tuesday that they will 'look into this matter today'. Surely even if they feel they don't owe me any money they need to state the reasons why?

So... onwards and upwards. I feel more positive now.

Thank you all so much for your input and guidance - it means the world and is so incredibly useful!

xx

[Trev1234]

Re: Help - really worried

Hey Aunty you to keep strong. You seem to be doing the right thing just keep going and TRY to be positive. There are worse things in life - I've had to believe in these words myself so know it's not easy. If you want to talk over padding your days out, lack of motivation, or daytime TV I'm your man!

Trevor x

[teaboy2]

Re: Help - really worried

That is positive news, and am glad along with no doubt other members here that the union have noticed the significance of the protected disclosure you made and the connection and timing between that and the alleged allegation against you that you were dismissed for - I think the statement "The disciplinary hearing report recommends dismissal and mentions the following: '---- has less than two years' service and as such the case is considered low risk'." it self shows their was a collaboration between line manager, colleague with that of management or at least a clear desire to get rid of you!

Plus questions should be raised as to why an investigation report recommends dismissal, as they can only recommend disciplinary action or no action to be taken, not what the outcome should be. As they simply should not be drawing conclusion's as to the punishment, as that is the job of the disciplinary panel ( more info here that you might like to read @auntycabbage https://www.crunch.co.uk/blog/small-...-by-employers/!)

[auntycabbage]

Re: Help - really worried

Hi all

It has been a while since I posted on here so I wanted to update you on my case. Firstly, thank you so much for all of your help., support and advice. It was invaluable.

Unison have taken my case to tribunal - date is set for early May and Thompsons Solicitors are representing me. We have lots of grounds including discrimination on the grounds of disability and sex, but also the protected disclosures I made. I may not win, but I am proud we are fighting and feel determined. I can only tell the truth and what will be, will be!

Much love
xxx