have been given 5 days then i have been given 5 days then i have to

[teaboy2]

Re: have been given 5 days then i have been given 5 days then i have to

@teaboy2, can I just ask about the statute or case law that established the right to be accompanied at an investigation meeting? The reason I ask is because I wonder whether it's something that's only been around for the last, say, 10 years or so, while the right to be accompanied at a disciplinary has been around much longer than that.

I was involved in a case where I had legal representation as well as a well clued up person looking into each and every aspect of the case up until the point I got legal representation, yet at no point was the right to be accompanied at an investigation meeting brought up. The person who advised me was quite insistent that I should be entitled to be accompanied (at the disciplinary) by someone other than a colleague or trade union rep given that I didn't belong to a union and union membership in that line of business (investment banking) was not exactly encouraged. The fact that a colleague who was also my friend got dismissed at the same time and even another friend who worked at another bank was also dismissed was put forward as an argument against using a colleague, however, there was never any mention of investigation meetings, and there were two of them, very significant ones. I was just told to take a tape recorder with me to the meeting(s) and record the whole thing. No one ever said I should/could be accompanied at these meetings, only at the disciplinary.

Could this be something that only came up more recently? If so, I'd be interested to know how it came about.

If your terms and conditions allowed you to be accompanied to the investigatory meetings, then yes you also had the right to make a reasonable request as to who, and the employer would probably have acted unfairly by not allowing your former colleague to attend. But thats contractual right as supported by the Stevens Case Law.

If you didn't have the contractual right, they a lot depends on whether your terms makes clear that the investigatory was informal and not part of the formal disciplinary procedure. If it didn't then they would have not been informal meetings, but in fact formal meetings under the disciplinary procedure and therefore disciplinary hearings, with a different name given to them! Same if they were informal where they morphed into formal disciplinary hearing! Skriggs case i mentioned above made clear the importance of keeping the investigatory informal and outside of the formal disciplinary procedure! Because if Skriggs employer had not made clear it was informal and not a formal disciplinary hearing, then Skriggs would likely have won his claim!

[FlamingParrot]

Re: have been given 5 days then i have been given 5 days then i have to

If your terms and conditions allowed you to be accompanied to the investigatory meetings, then yes you also had the right to make a reasonable request as to who, and the employer would probably have acted unfairly by not allowing your former colleague to attend. But thats contractual right as supported by the Stevens Case Law.

I don't think that was in the T&Cs or it would have been noted by my advisors at the time.

If you didn't have the contractual right, they a lot depends on whether your terms makes clear that the investigatory was informal and not part of the formal disciplinary procedure. If it didn't then they would have not been informal meetings, but in fact formal meetings under the disciplinary procedure and therefore disciplinary hearings, with a different name given to them! Same if they were informal where they morphed into formal disciplinary hearing!

The first investigation meeting was right after I was suspended pending an investigation so I wouldn't have thought it was very "informal". It lasted over three hours and that only because I decided to get up and walk out at that point because they started referring to my emails to my friend who worked at the other bank and I said I wasn't prepared to discuss third parties without legal advice. The day after they sent a cab to pick me up with my home computer and laptop to be examined by someone from IT on the premises. No questions were asked of me, only the equipment was looked at and there was nothing to look at because I'd taken out the second HD with all my files and reformatted the main HD leaving just a C:>prompt! :lol: However, that could hardly be considered informal either!

Skriggs case i mentioned above made clear the importance of keeping the investigatory informal and outside of the formal disciplinary procedure! Because if Skriggs employer had not made clear it was informal and not a formal disciplinary hearing, then Skriggs would likely have won his claim!

From what I can see, even though the case arose from incidents that took place in 2002, it was only finalised in 2005. The meetings above took place in 2003 so that precedent wouldn't have been there to refer to, which may explain why the issue wasn't brought up at the time.

[teaboy2]

Re: have been given 5 days then i have been given 5 days then i have to

I don't think that was in the T&Cs or it would have been noted by my advisors at the time.


The first investigation meeting was right after I was suspended pending an investigation so I wouldn't have thought it was very "informal". It lasted over three hours and that only because I decided to get up and walk out at that point because they started referring to my emails to my friend who worked at the other bank and I said I wasn't prepared to discuss third parties without legal advice. The day after they sent a cab to pick me up with my home computer and laptop to be examined by someone from IT on the premises. No questions were asked of me, only the equipment was looked at and there was nothing to look at because I'd taken out the second HD with all my files and reformatted the main HD leaving just a C:>prompt! :lol: However, that could hardly be considered informal either!

Well i wouldn't consider that an informal investigatory meeting either, but more like an interrogation! And what right did they have to your home computer and laptop, assuming that they were your personal property? No right at all unless they were company property which i guess they were not given you removed the second HD and reformatted the main one on your home computer!


From what I can see, even though the case arose from incidents that took place in 2002, it was only finalised in 2005. The meetings above took place in 2003 so that precedent wouldn't have been there to refer to, which may explain why the issue wasn't brought up at the time.

Yes case wasn't settled till 2005, but saying that if your situation was similar and you'd taken it to tribunal using same/similar arguments then you could well have actually won at tribunal if they to considered the investigatory meeting to have crossed the line and morphed into formal disciplinary hearings - or if the employer failed to state in their policy that said meeting was informal and not part of the formal disciplinary process!

[Berniethebolt]

Re: have been given 5 days then i have been given 5 days then i have to

Teaboy2

Please lets put it to bed
With regard to me asking for evidence, you made a statement that you 'believe' to be true, I contradicted that and provided evidence that my statement was correct saying that if you could provide alternative evidence I would be happy to take it on board and admit my mistake . That is not an unreasonable request. If I stated that the sky was green and you said no it wasn't and showed evidence , wouldn't you (or any reasonable person) expect me to try and show evidence that it was in fact green.

Cutting through all the hype the basic fact that there is no automatic right to be accompanied at an investigation meeting as I have evidenced. Yes best practice may well be that a company clearly states that this is an informal investigation meeting however there is nothing in law to say they have to make that declaration prior to an investigation meeting. Again there may be contractual differences or Union agreements that over ride this.
Even if the investigation morphs into a disciplinary meeting that would not be an automatic unfair dismissal at ET and it is becoming increasingly difficult to get to E.T. thanks to our lovely government. Incidentally, and this is a point for judgemental to be aware of, when looking at the ACAS code of conduct, ACAS state they expect in essence that the larger the company the more closely they should follow the code. Again breach of the code is not automatic unfair dismissal although there can be an uplift in award of up to 25% for breach.

Assuming your comment in post 15 was made with knowledge of the T&C's for the OP, would it not have been good practice to have said something to clarify that , only because many people read these posts and frankly may clutch at straws , so they may go down a route thinking 'well teaboy2 said that was right'.

You have stated that the judiciary can not interpret law. I think I have provided plenty of evidence that this is not the case. One aspect of their job is to interpret the law, sometimes that interpretation is binding sometimes persuasive. I have never said that they don't sometimes get it wrong hence our legal system that goes up to the supreme court and then (if you don't die waiting) the European Court.


Overall we will have to agree to differ and overall I think that , if he can find alternative employment the OP would be best to leave the company he is with . Depending on his length of service there may be a possibility for a claim of constructive dismissal but as i said before ET's are becoming more and more inaccessible to the ordinary person particularly where you now have to pay a deposit . A prime example of this government exercising more and more control over the population (although labour we're as bad with their surveillance).

Just a point to consider on top of this, if the OP used covert methods to record either audio and/or video would that be allowed to be used in court . I fear that it would be inadmissible and a potential breach of the DPA

[FlamingParrot]

Re: have been given 5 days then i have been given 5 days then i have to

Yes case wasn't settled till 2005, but saying that if your situation was similar and you'd taken it to tribunal using same/similar arguments then you could well have actually won at tribunal if they to considered the investigatory meeting to have crossed the line and morphed into formal disciplinary hearings - or if the employer failed to state in their policy that said meeting was informal and not part of the formal disciplinary process!

None of the people I consulted or even the one who represented me said anything about the investigation meetings or that I could have won on those grounds, :mmph: on the contrary, my representative from the University of London consulted an employment professor who gave my case only 20% chance of winning and, worse than that, I also got costs warnings, so I ended up accepting an almost derisory settlement and an agreed reference. :ohwell: I don't know whether the ET was awarding costs against claimants more often than nowadays where it seems to be just 1% of cases. Would be interesting to see stats for 2003/2004. If it hadn't been for the costs warnings, I'd probably have rejected the settlement and gone all the way.

Even if the investigation morphs into a disciplinary meeting that would not be an automatic unfair dismissal at ET and it is becoming increasingly difficult to get to E.T. thanks to our lovely government. Incidentally, and this is a point for judgemental to be aware of, when looking at the ACAS code of conduct, ACAS state they expect in essence that the larger the company the more closely they should follow the code. Again breach of the code is not automatic unfair dismissal although there can be an uplift in award of up to 25% for breach.

Yes, an employment solicitor has said this to me, however, the uplift refers to complete or major failure to follow the ACAS code rather than an individual procedural error.

You have stated that the judiciary can not interpret law. I think I have provided plenty of evidence that this is not the case. One aspect of their job is to interpret the law, sometimes that interpretation is binding sometimes persuasive. I have never said that they don't sometimes get it wrong hence our legal system that goes up to the supreme court and then (if you don't die waiting) the European Court.

I have to agree with this, it's seen across the board (such as judges deciding when the limitation period starts to run, sometimes wrongly) and specifically in employment matters, when it comes to establishing whether someone was an employee or self-employed, the law is wide open to interpretation, and even case law which should set precedent has to be interpreted if the circumstances of the case being heard are not identical to the precedent being used. That's why ET judgments can take months. :mmph:

Overall we will have to agree to differ and overall I think that , if he can find alternative employment the OP would be best to leave the company he is with . Depending on his length of service there may be a possibility for a claim of constructive dismissal but as i said before ET's are becoming more and more inaccessible to the ordinary person particularly where you now have to pay a deposit . A prime example of this government exercising more and more control over the population (although labour we're as bad with their surveillance).

Claims based on constructive dismissal have just a 3% success rate at the ET, although someone I know got a settlement after issuing one such claim, it was, again, a very small settlement with an agreed reference and came from the same company that settled with me years early, a large corporation making a commercial settlement. Smaller businesses seem much more reluctant to settle IMHO.

Just a point to consider on top of this, if the OP used covert methods to record either audio and/or video would that be allowed to be used in court . I fear that it would be inadmissible and a potential breach of the DPA

I was advised to tape every meeting including the appeal and so was my friend, and there was never any mention of DPA issues, however, the cases didn't go all the way to the ET so no idea whether the tapes would have been admissible. :noidea:

[Berniethebolt]

Re: have been given 5 days then i have been given 5 days then i have to

The reason I mentioned about covert recording is the uncertainty in recording DWP medical assessments and what you can or can not do with them if you do not inform the people involved of their voice being recorded.

I do not think there is a problem as such in recording , just what use would they be. I am open to suggestions on that

[Kati]

Re: have been given 5 days then i have been given 5 days then i have to

The reason I mentioned about covert recording is the uncertainty in recording DWP medical assessments and what you can or can not do with them if you do not inform the people involved of their voice being recorded.

I do not think there is a problem as such in recording , just what use would they be. I am open to suggestions on that

quite a lot of 'benefit groups' suggest recording every interview (in fact I myself record every one when I am there as a witness for people) ... there is no law to say you can't, just that the recordings cannot be used without the other people's knowledge . Therefore if they were to be used in court proceedings, you would possibly need them to agree (after you've disclosed them of course).

I have (however) known many company's (DWP included) back down at the last minute due to covert recordings being mentioned :nod:

[teaboy2]

Re: have been given 5 days then i have been given 5 days then i have to

Teaboy2

Please lets put it to bed
With regard to me asking for evidence, you made a statement that you 'believe' to be true, I contradicted that and provided evidence that my statement was correct saying that if you could provide alternative evidence I would be happy to take it on board and admit my mistake . That is not an unreasonable request. If I stated that the sky was green and you said no it wasn't and showed evidence , wouldn't you (or any reasonable person) expect me to try and show evidence that it was in fact green.

Actually the evidence you provided merely supported the well known fact that you do not have a statutory right accompanied to an "informal" meetings (including informal investigatory meetings) - The evidence however did nothing to disprove my argument that basically if the employer fails to make clear said meeting is informal and not part of the formal disciplinary procedure, then said meeting can only be formal and a formal part of the disciplinary process, and is therefore a disciplinary meeting as the disciplinary procedure is already in full swing, as such they are entitled to be accompanied in such circumstances! Non of your evidence disproved my argument in the slightest! Just because it supported what you were saying, doesn't by any means disprove my argument. A reasonable person would expect you to disprove my argument, by providing evidence proving my argument was wrong! So far you haven't provided any evidence specific to what a persons entitlements are when the employer includes the investigatory meeting under formal disciplinary procedure (after already starting disciplinary action) and not separately from the disciplinary procedure i.e prior to starting commencing disciplinary action! - So just because you provided evidence backing up your side, when we all known you don't have a statutory right to be accompanied to informal investigatory meetings that are separate from the disciplinary procedure, it doesn't mean you had disproved my argument.

I provided reference to the Skrigg case, said case made it clear how important it is for employer to make clear the investigatory is informal and does not form part of the formal disciplinary process. Therefore implying that if its not made clear then it is a formal meeting and part of the formal disciplinary procedure, therefore making it nothing less than a disciplinary hearing or 1 of a number of disciplinary hearings to which a person would have a statutory right to be accompanied!

So if your going to say someone is wrong, then the onus is on you to disprove their argument, not just back up your own argument and assuming doing so makes you right!

Cutting through all the hype the basic fact that there is no automatic right to be accompanied at an investigation meeting as I have evidenced. Yes best practice may well be that a company clearly states that this is an informal investigation meeting however there is nothing in law to say they have to make that declaration prior to an investigation meeting. Again there may be contractual differences or Union agreements that over ride this.
Even if the investigation morphs into a disciplinary meeting that would not be an automatic unfair dismissal at ET and it is becoming increasingly difficult to get to E.T. thanks to our lovely government. Incidentally, and this is a point for judgemental to be aware of, when looking at the ACAS code of conduct, ACAS state they expect in essence that the larger the company the more closely they should follow the code. Again breach of the code is not automatic unfair dismissal although there can be an uplift in award of up to 25% for breach.

I never said it was automatic unfair dismissal - Though the dismissal itself would be unfair if the employer was in serious breach of the code, and if they fail to make clear the investigation is informal and not part of the formal disciplinary process, then they would be in serious breach by not allowing an employee to be accompanied to formal disciplinary hearing (formal investigatory meeting). Acas code makes clear that the employer must hold an investigatory meeting prior to any disciplinary action and said investigatory meeting should not itself result in disciplinary action - But if the employer failed to make clear that such investigatory meeting did not form part of the formal disciplinary process, then it can only be part of the formal disciplinary process, therefore disciplinary action would have already began prior to the investigatory meeting therefore making it a formal disciplinary hearing with he potential of further action being taken by the employer against the employee - Meaning under section 13 (4b) employment relations act 1999, such hearing (investigatory meeting carried out as part of formal disciplinary procedure and not separate) is deemed a disciplinary hearing and the right to be accompanied applies, simply because of the fact that such a hearing can result in further action being taken against the employee by the worker, or indeed result in formal warning, dismissal or other disciplinary punishment!! - Hence why it is important to make it clear the investigatory meeting is informal and does not form part of the formal disciplinary procedure, which in doing so, makes clear to employee that the formal disciplinary procedure hasn't began and doesn't begin till after an investigation!

Assuming your comment in post 15 was made with knowledge of the T&C's for the OP, would it not have been good practice to have said something to clarify that , only because many people read these posts and frankly may clutch at straws , so they may go down a route thinking 'well teaboy2 said that was right'.

Well sometimes i am a very busy man, and do not always have the time to clarify everything for the purpose of others reading the thread. My post was for the direct benefit of the OP not for the benefit of anyone else who may have been reading it. Not to mention the fact their situation would likely be different to that of the OP's in any case.

You have stated that the judiciary can not interpret law. I think I have provided plenty of evidence that this is not the case. One aspect of their job is to interpret the law, sometimes that interpretation is binding sometimes persuasive. I have never said that they don't sometimes get it wrong hence our legal system that goes up to the supreme court and then (if you don't die waiting) the European Court.

I never said they could not interpret laws, my argument was they can not amend, change, or add to what is current written law, or change the meaning or definition of it, to suit their own interpretation (as per the pay slip case) as doing so is wrong in law. Which is likely to be overturned at a higher court. And to be honest all that bringing this matter up and carey and brandon case law has done is added confusion and distracted from the main argument, hell its not even the slightest bit relevant to the argument!


Overall we will have to agree to differ and overall I think that , if he can find alternative employment the OP would be best to leave the company he is with . Depending on his length of service there may be a possibility for a claim of constructive dismissal but as i said before ET's are becoming more and more inaccessible to the ordinary person particularly where you now have to pay a deposit . A prime example of this government exercising more and more control over the population (although labour we're as bad with their surveillance).

Just a point to consider on top of this, if the OP used covert methods to record either audio and/or video would that be allowed to be used in court . I fear that it would be inadmissible and a potential breach of the DPA

Actually yes employment tribunals actually do allow such evidence to be admissible!

And i agree to disagree also!

To be honest i don't think its his employer that was the main problem but the manager of the store in question. His employers are simply trying to keep both the store manager happy and keep the OP in employment!

EDIT

Case law regarding the covert recordings being admissible evidence - Vaughan v London Borough of Lewisham and Ors

[FlamingParrot]

Re: have been given 5 days then i have been given 5 days then i have to

Actually the evidence you provided merely supported the well known fact that you do not have a statutory right accompanied to an "informal" meetings (including informal investigatory meetings) - The evidence however did nothing to disprove my argument that basically if the employer fails to make clear said meeting is informal and not part of the formal disciplinary procedure, then said meeting can only be formal and a formal part of the disciplinary process, and is therefore a disciplinary meeting as the disciplinary procedure is already in full swing, as such they are entitled to be accompanied in such circumstances! Non of your evidence disproved my argument in the slightest! Just because it supported what you were saying, doesn't by any means disprove my argument. A reasonable person would expect you to disprove my argument, by providing evidence proving my argument was wrong! So far you haven't provided any evidence specific to what a persons entitlements are when the employer includes the investigatory meeting under formal disciplinary procedure (after already starting disciplinary action) and not separately from the disciplinary procedure i.e prior to starting commencing disciplinary action! - So just because you provided evidence backing up your side, when we all known you don't have a statutory right to be accompanied to informal investigatory meetings that are separate from the disciplinary procedure, it doesn't mean you had disproved my argument.

I provided reference to the Skrigg case, said case made it clear how important it is for employer to make clear the investigatory is informal and does not form part of the formal disciplinary process. Therefore implying that if its not made clear then it is a formal meeting and part of the formal disciplinary procedure, therefore making it nothing less than a disciplinary hearing or 1 of a number of disciplinary hearings to which a person would have a statutory right to be accompanied!

From what you say above, the whole argument seems to hinge on whether the employers made it clear that the investigation meeting was INFORMAL and not part of the disciplinary process. Clearly that wouldn't have been the case with the two meetings I had since they took place after I'd been suspended "pending an investigation..." In fact, the investigation meetings took place AFTER the original disciplinary date. On the day I was suspended I was handed a letter inviting me to a disciplinary the day after, the letter also said I had the right to at least 24 hours notice before a disciplinary. The letter was given to me at 5pm, the disciplinary was scheduled for 1pm! I remarked on that fact and they swiftly went away and printed off another letter, re-scheduling the disciplinary for Monday. Over the w/e I got in touch with friends who referred me to Dr Hinton who is a friend of theirs: http://www.thompsons.law.co.uk/ltext/l1510003.htm He drafted a letter saying I would not be attending the disciplinary on Monday for a number of reasons and went on to list a number of points. I always thought not attending a disciplinary was just like not responding to a court claim where the claimants obtain default judgment, i.e. the employers would be entitled to terminate your employment without further ado. That was not the case, I emailed the letter over the w/e and the disciplinary was postponed.

I had been told as I was suspended on full pay I had to be "on call" during my normal working hours, that mean my mobile switched on at all times and I should be available to do whatever they asked me to do as I was being paid as if I was at work. On the Tuesday after the original disciplinary date I got a call asking me to attend an investigation meeting, there was no mention of informality or anything about being accompanied and I was given just a few hours to travel to the meeting. The day after I got a call saying a cab was on its way to pick me up with my computer as described on previous posts. I could hardly call any of this 'informal' and as you will note, I was supposed to have had the disciplinary BEFORE any of these meetings took place.

All this was carefully documented and presented to the employment specialists at Toynbee Hall by Dr Hinton himself who drafted all my letters and who picked holes everywhere. Toynbee Hall don't usually take cases just give legal advice, however, they found the case so worthwhile they got one of the employment lawyers to represent me at the ET. He submitted a claim and I kept going there every week and had discussions with a number of people on matters relating to copyright and intellectual property as well. The alleged gross misconduct was simply to have a website showcasing my work and promoting my services and a one liner where I said my employers were my clients somewhere on the site but not on the front page. I took down the site right after I was suspended. As the months went by, my case was looked at by employment specialists at the University of London who decided I had just a 20% chance of winning and warned be about costs as said on previous posts. I just find it strange that the point regarding the right to be accompanied at the meetings was never, ever brought up by anyone involved, and it wasn't like I was doing it all on my own.

I never said it was automatic unfair dismissal - Though the dismissal itself would be unfair if the employer was in serious breach of the code, and if they fail to make clear the investigation is informal and not part of the formal disciplinary process, then they would be in serious breach by not allowing an employee to be accompanied to formal disciplinary hearing (formal investigatory meeting). Acas code makes clear that the employer must hold an investigatory meeting prior to any disciplinary action and said investigatory meeting should not itself result in disciplinary action - But if the employer failed to make clear that such investigatory meeting did not form part of the formal disciplinary process, then it can only be part of the formal disciplinary process, therefore disciplinary action would have already began prior to the investigatory meeting therefore making it a formal disciplinary hearing with he potential of further action being taken by the employer against the employee - Meaning under section 13 (4b) employment relations act 1999, such hearing (investigatory meeting carried out as part of formal disciplinary procedure and not separate) is deemed a disciplinary hearing and the right to be accompanied applies, simply because of the fact that such a hearing can result in further action being taken against the employee by the worker, or indeed result in formal warning, dismissal or other disciplinary punishment!! - Hence why it is important to make it clear the investigatory meeting is informal and does not form part of the formal disciplinary procedure, which in doing so, makes clear to employee that the formal disciplinary procedure hasn't began and doesn't begin till after an investigation!

I see this relates to legislation dating back to 1999 so it would clearly have been applicable in 2003. They flaunted the procedure by scheduling the disciplinary even before the investigation meetings to start with and that WAS highlighted in the case, however, despite all the procedural errors I was still given only 20% chance of winning, the argument being that despite all the procedural errors, what I did was allegedly "bad" enough to merit dismissal, even though it was just what I said above. Perhaps it had to do with the industry I was working in at the time. :noidea:

[Berniethebolt]

Re: have been given 5 days then i have been given 5 days then i have to

Teaboy

One thing at a time.

When you make an assertion which is questioned and evidence provided to back up that question, if you then are unable or unwilling to provide any evidence to back up you assertion it is up to the reader to decide who's account is more credible . To put it another way , if we follow your argument then someone is guilty until proven innocent and proving a negative certainly has its challenges. It is, in my opinion quite reasonable to assume that if there is an investigation meeting after the formal disciplinary process has begun (and suspension with pay does not need to be the start of the disciplinary process-it is just due care) then unless otherwise stated the investigation is part of the disciplinary process, it is however completely unreasonable to automatically assume that unless explicitly stated otherwise initial investigation meeting(s) are to be classed as part of the disciplinary process. To take that to its logical conclusion, any meeting between a boss and a subordinate that has the remotest chance of becoming disciplinary should be treated as such. If I am invited to my annual appraisal which turns out to raise disciplinary issues, should I have been offered the chance to be accompanied in the first place, I think people would agree that this is nonsense. If that were the case wouldn't everyone want to have a witness to their appraisal just in case or if something transpired in that appraisal that required further investigation you are suggesting that due process has not been followed. The Skiggs Tribunal said this on the matter
.

However, as the judgment of the EAT in that case was careful to emphasise at paragraphs 11-12, it is not every meeting that happens to take place between management and a worker which might lead, however indirectly, to some form of action being taken that constitutes a “disciplinary hearing” and it would be absurd to apply the definition in section 13(4) in that way.

I think the above quote does kinda scupper the rest of your argument notwithstanding the highlighted section below and the comments I have previously made

Having quickly read the Skiggs case

Skiggs v South West Trains Ltd [2005] EAT on 7 March 2005

as far as I can see the tribunal have said nothing of the sort. What they did say was

11. In rejecting the argument on behalf of the Applicant that the interview with Mr Johnston fell within the definition because it “might lead to a subsequent [sic] disciplinary hearing” which in the light of the Applicant’s record might lead to action of some disciplinary nature against him, the Tribunal said in paragraph 17 of its Extended Reasons:
“We are satisfied that an investigative hearing remains an investigative hearing notwithstanding that in certain circumstances and in particular having regard to an employee’s record, proceedings thereafter may be instituted, which would under section 10 be considered to be a disciplinary hearing. Our view is wholly fortified by the guidance contained in paragraph 53 of the ACAS code. It is clear that investigative interviews are seen as separate and distinct from disciplinary hearings “if it becomes clear during the course of the informal or investigative interview that formal disciplinary action may be needed then the interview should be terminated and a formal hearing convened at which the worker should be afforded the statutory right to be accompanied.” We are satisfied that Mr Johnston’s interview with the Applicant remained at all times an investigative interview whether or not it might have changed its character in the light of any answers given by the Applicant. We therefore dismiss the Applicant’s complaint under this claim.”

This is a post from you on a thread

The courts/tribunal do not have the power to add interpretations to statutory law,

so unless someone is posting under your name you have quite clearly said that they could interpret law

With regard to your response to my quote

Even if the investigation morphs into a disciplinary meeting that would not be an automatic unfair dismissal at ET and it is becoming increasingly difficult to get to E.T. thanks to our lovely government. Incidentally, and this is a point for judgemental to be aware of, when looking at the ACAS code of conduct, ACAS state they expect in essence that the larger the company the more closely they should follow the code. Again breach of the code is not automatic unfair dismissal although there can be an uplift in award of up to 25% for breach

I apologise if you missed the highlighted words, I should have made it clearer, I was not referring to something you had said but something judgemental24 had said

In summary
Looking at the Skiggs case , there is no need at all to allow a witness at an investigation and indeed there is also no need at all to specify that it is only an informal meeting ( However I think all would agree that it was best practice). If however during the course of the investigatory meeting it becomes clear that formal disciplinary action may be needed the meeting should be closed and the formal process started .

Thank you for the link regarding covert recording, I will read it when i have a moment but am busy with my own tribunal case at the mo. As I said it was just a thought that stemmed from things I have read on various forums regarding DWP regarding the covert recording of their so called 'medical' assessments by their so called health care 'professionals'

As for the OP , I have seen it many times in retail particularly when a new manager is moved in, they want things their way and want to ruffle feathers . The problem is of course , depending on the contract between the DIY chain and the security company the new manager may indeed be able to demand changes in hours or even personnel . If that is the case the dispute is between the OP and his employer

[judgemental24]

Re: have been given 5 days then i have been given 5 days then i have to

If an employee uses clandestine methods such as covert recordings without informing the employer, that will be seen as a breakdown of mutual trust between employer and employe. Unless those recordings are used in a protected disclosure.

[FlamingParrot]

Re: have been given 5 days then i have been given 5 days then i have to

If an employee uses cladestine methods such as covert recordings without informing the employer, that will be seen as a breakdown of mutual trust between employer and employe. Unless those recordings are used in a protected disclosure.

I was advised to tape the meetings which took place after IT had hacked my email account and my allocated 'personal' hard drive, they'd printed off all my emails and got compliance to ring another company to investigate an employee of that company based on my emails to him. hone: I'd say by the time I taped anything, the mutual trust would have already been broken into a million pieces!

[teaboy2]

Re: have been given 5 days then i have been given 5 days then i have to

From what you say above, the whole argument seems to hinge on whether the employers made it clear that the investigation meeting was INFORMAL and not part of the disciplinary process. Clearly that wouldn't have been the case with the two meetings I had since they took place after I'd been suspended "pending an investigation..." In fact, the investigation meetings took place AFTER the original disciplinary date. On the day I was suspended I was handed a letter inviting me to a disciplinary the day after, the letter also said I had the right to at least 24 hours notice before a disciplinary. The letter was given to me at 5pm, the disciplinary was scheduled for 1pm! I remarked on that fact and they swiftly went away and printed off another letter, re-scheduling the disciplinary for Monday. Over the w/e I got in touch with friends who referred me to Dr Hinton who is a friend of theirs: http://www.thompsons.law.co.uk/ltext/l1510003.htm He drafted a letter saying I would not be attending the disciplinary on Monday for a number of reasons and went on to list a number of points. I always thought not attending a disciplinary was just like not responding to a court claim where the claimants obtain default judgment, i.e. the employers would be entitled to terminate your employment without further ado. That was not the case, I emailed the letter over the w/e and the disciplinary was postponed.

I had been told as I was suspended on full pay I had to be "on call" during my normal working hours, that mean my mobile switched on at all times and I should be available to do whatever they asked me to do as I was being paid as if I was at work. On the Tuesday after the original disciplinary date I got a call asking me to attend an investigation meeting, there was no mention of informality or anything about being accompanied and I was given just a few hours to travel to the meeting. The day after I got a call saying a cab was on its way to pick me up with my computer as described on previous posts. I could hardly call any of this 'informal' and as you will note, I was supposed to have had the disciplinary BEFORE any of these meetings took place.

All this was carefully documented and presented to the employment specialists at Toynbee Hall by Dr Hinton himself who drafted all my letters and who picked holes everywhere. Toynbee Hall don't usually take cases just give legal advice, however, they found the case so worthwhile they got one of the employment lawyers to represent me at the ET. He submitted a claim and I kept going there every week and had discussions with a number of people on matters relating to copyright and intellectual property as well. The alleged gross misconduct was simply to have a website showcasing my work and promoting my services and a one liner where I said my employers were my clients somewhere on the site but not on the front page. I took down the site right after I was suspended. As the months went by, my case was looked at by employment specialists at the University of London who decided I had just a 20% chance of winning and warned be about costs as said on previous posts. I just find it strange that the point regarding the right to be accompanied at the meetings was never, ever brought up by anyone involved, and it wasn't like I was doing it all on my own.

I see this relates to legislation dating back to 1999 so it would clearly have been applicable in 2003. They flaunted the procedure by scheduling the disciplinary even before the investigation meetings to start with and that WAS highlighted in the case, however, despite all the procedural errors I was still given only 20% chance of winning, the argument being that despite all the procedural errors, what I did was allegedly "bad" enough to merit dismissal, even though it was just what I said above. Perhaps it had to do with the industry I was working in at the time. :noidea:

Yes they clearly started formal proceedings from the moment you were suspended and lack of making clear the investigatory was informal and not part of those formal proceedings would have meant they fell foul of section 10 and section 13(4) Employment relations 1999 as clearly in your case the chance of the so called investigatory meeting resulting in further disciplinary action (remember investigatory meetings must not on their own result in disciplinary action) or disciplinary punishment would have been unavoidable. So yes it would have made your dismissal unfair on basis they failed to allow you your right to be accompanied. They would have also had difficulties arguing the the meetings were informal given they'd clearly already started formal proceedings by first inviting you to disciplinary hearing, when first they should invite you to informal investigation and not start formal proceedings until after the investigatory meeting and subsequent investigations have been completed. I think the UOL gave you such low chance of success based more on the reason for dismissal more than anything else to be honest. So whilst you may have won your claim for breach of your statutory right to be accompanied, you may not have won your overall claim for unfair dismissal! Plus it wasn't till 2005 when the outcome of the skriggs case highlighted the need to make clear investigatory meetings are informal and not part of formal disciplinary proceedings i.e so then its clear said meeting will not on its own result it further disciplinary action/punishment, where as a meeting under formal proceedings certainly will result in further disciplinary action or punishment!

- - - Updated - - -

Teaboy

One thing at a time.

When you make an assertion which is questioned and evidence provided to back up that question, if you then are unable or unwilling to provide any evidence to back up you assertion it is up to the reader to decide who's account is more credible . To put it another way , if we follow your argument then someone is guilty until proven innocent and proving a negative certainly has its challenges. It is, in my opinion quite reasonable to assume that if there is an investigation meeting after the formal disciplinary process has begun (and suspension with pay does not need to be the start of the disciplinary process-it is just due care) then unless otherwise stated the investigation is part of the disciplinary process, it is however completely unreasonable to automatically assume that unless explicitly stated otherwise initial investigation meeting(s) are to be classed as part of the disciplinary process. To take that to its logical conclusion, any meeting between a boss and a subordinate that has the remotest chance of becoming disciplinary should be treated as such. If I am invited to my annual appraisal which turns out to raise disciplinary issues, should I have been offered the chance to be accompanied in the first place, I think people would agree that this is nonsense. If that were the case wouldn't everyone want to have a witness to their appraisal just in case or if something transpired in that appraisal that required further investigation you are suggesting that due process has not been followed. The Skiggs Tribunal said this on the matter

Sorry but if you question someones assertion its up to the person questioning it to disprove the persons assertion - In this case all you did was provide evidence that if the investigatory is informal and not part of the formal disciplinary procedure, then their right to be accompanied doesn't apply - Something we all know full well is the case, and which i have not said isn't the case. But said evidence did not in anyway disprove my assertion that if they fail to state said meeting is informal and not part of the formal disciplinary procedure, then it can only be a formal meeting held under a formal disciplinary procedure, therefore said meeting can result itself in disciplinary action/punishment as per section 13 of the employment relations act and therefore the right to be accompanied does indeed apply - So where is your evidence that disprove's that!! You even said yourself if it morphs in to formal disciplinary proceedings then they have the right to be accompanied. What am saying is it will have already morphed in to formal disciplinary proceedings as soon as the employer fails to state the meeting is informal and does not form part of the formal disciplinary procedure!!

I think the above quote does kinda scupper the rest of your argument notwithstanding the highlighted section below and the comments I have previously made

Having quickly read the Skiggs case

Skiggs v South West Trains Ltd [2005] EAT on 7 March 2005

as far as I can see the tribunal have said nothing of the sort. What they did say was

Your still completely missing the whole point aren't you. There is no difference between an informal meeting that is not part of the formal process that morphs into a disciplinary hearing, to that of a formal investigatory meeting that actually forms part of the formal disciplinary procedure which may result in further disciplinary action or punishment. If they do not make clear said investigatory meeting is informal and does not form part of the formal disciplinary process, then it can only be part of the formal disciplinary process and therefore its a disciplinary hearing regardless as to what name they give to it!! They basically made clear that the line between informal and formal (under disciplinary procedure) should not be crossed in or for that matter before said so called informal meeting!! In other words as soon as disciplinary procedure (formal disciplinary procedure) is started then any investigatory meeting is a formal disciplinary hearing!!

The only reasons Skrigg lost was because 1 the investigatory meeting was informal and didn't form part of the formal disciplinary procedure. And 2, didn't result in any formal disciplinary action/sanction - So didn't meet the test for section 13 (4) employment relations act. However if it had been a formal meeting under a formal disciplinary procedure then it would have passed the test simply due to the fact it could result in further disciplinary action or sanctions - Investigatory meetings where the right to be accompanying doesn't apply, cannot on their own result in disciplinary action, hence why it has to carried out as separate to the formal disciplinary procedure, because if its part of the formal procedure it can only result in disciplinary action of punishment!!

Your confusing a persons rights under informal non disciplinary procedure meetings (informal investigatory meetings) with what their rights are in formal meetings that form part of a formal disciplinary procedure. If its informal and not part of the formal disciplinary procedure, then no right to be accompanied. But if its formal and forms part of the formal disciplinary procedure, then they do have the right to be accompanied!!

Even employment lawyers and HR consultants are saying the case highlighted the need for employers to make sure employees are aware that investigatory meetings are informal and do not form part of the formal disciplinary procedure to avoid falling foul of section 10 employment relations act to avoid crossing the line between informal (not part of disciplinary proceedings) and formal (part of the disciplinary proceedings).

This is a post from you on a thread - The key word i used there was "add" - they only have the power to make, or base their, interpretations of what is written as law, not add their own to it - i.e make the law up to suit their interpretation! So i never said they couldn't interpret it, i said they couldn't add their interpretations i.e amend, change the meaning or definition, or add to what is written to make the law suit their interpretation - as per the judge in the pay slip case did by adding visualization on a computer screen to the definition of the word written under the interpretations act, just so the law then suited his interpretation of the word "written".


so unless someone is posting under your name you have quite clearly said that they could interpret law

With regard to your response to my quote



I apologise if you missed the highlighted words, I should have made it clearer, I was not referring to something you had said but something judgemental24 had said

In summary
Looking at the Skiggs case , there is no need at all to allow a witness at an investigation and indeed there is also no need at all to specify that it is only an informal meeting ( However I think all would agree that it was best practice). If however during the course of the investigatory meeting it becomes clear that formal disciplinary action may be needed the meeting should be closed and the formal process started .

Skriggs investigation was informal hence why there was no right to be accompanied. I highlighted the case purely because the case itself highlighted how important it was to make clear it was informal and not part of a formal disciplinary procedures or proceedings, to avoid crossing the line and falling foul of s.10 of the Employment Relations Act 1999! So if they don't state it informal and not part of a formal disciplinary procedure/proceedings then they will have crossed the line as it can only be formal and part of formal disciplinary procedure/proceedings if they fail to state otherwise, there falling foul off s.10 of the Employment Relations Act 1999.

Thank you for the link regarding covert recording, I will read it when i have a moment but am busy with my own tribunal case at the mo. As I said it was just a thought that stemmed from things I have read on various forums regarding DWP regarding the covert recording of their so called 'medical' assessments by their so called health care 'professionals'

As for the OP , I have seen it many times in retail particularly when a new manager is moved in, they want things their way and want to ruffle feathers . The problem is of course , depending on the contract between the DIY chain and the security company the new manager may indeed be able to demand changes in hours or even personnel . If that is the case the dispute is between the OP and his employer

see above in red

[Berniethebolt]

Re: have been given 5 days then i have been given 5 days then i have to

Teaboy
I really do have to give up trying to make sense of your argument or findinging any basis in truth to what you say

In no particular order
1) The point you made was that unless at the time of the meeting a statement is made that this in only an informal meeting then a right to be accompanied was mandatory. You want me to disprove this, so you want me to prove a negative. Well apart from the Skriggs case where it is stated that

“We are satisfied that an investigative hearing remains an investigative hearing notwithstanding that in certain circumstances and in particular having regard to an employee’s record, proceedings thereafter may be instituted, which would under section 10 be considered to be a disciplinary hearing. Our view is wholly fortified by the guidance contained in paragraph 53 of the ACAS code. It is clear that investigative interviews are seen as separate and distinct from disciplinary hearings “if it becomes clear during the course of the informal or investigative interview that formal disciplinary action may be needed then the interview should be terminated and a formal hearing convened at which the worker should be afforded the statutory right to be accompanied.”

and

However, as the judgment of the EAT in that case was careful to emphasise at paragraphs 11-12, it is not every meeting that happens to take place between management and a worker which might lead, however indirectly, to some form of action being taken that constitutes a “disciplinary hearing” and it would be absurd to apply the definition in section 13(4) in that way.

I think this proves my point and as you have said this was an appeal so sets precedent . There is NOTHING and I repeat NOTHING in there that even remotely backs up your assertion . What the Tribunal have said is that if you are told it is an investigation meeting then that is just what it is , with of course certain caveats about the content of the meeting.


I am guessing you are a mind reader as you have just said Skriggs lost the case because ..... The judgement made no comment on how it would have been had the investigation then been followed by a disciplinary .

Again , I realise that part of the defence in this case was that the meeting was stated to be an informal meeting however , in the judgement there is no mention that this has anything to do with the case being lost .

Just because key lawyers are telling firms that it is important to make sure that investigation meetings are clearly stated to be informal does not mean that if they are not they fall foul of the law. There is not one jot of evidence provided by anyone that I can see that suggests a failure to state this becomes a breach of any legislation . It is of course in lawyers interests to put out these sort of recommendations as they have to justify their existence (apologies to any member of the site team who may or maynot be a lawyer).



I realise that this is your opinion and you are entitled to it but opinions are like assholes, everybody has one. And before you take offence I am not calling you an asshole ;however you can not provide any proof that this argument would stand up in a court of law

As for interpretation
I can not even find the posts now where we first crossed swords on the subject of interpretation and the fact that is the judiciaries job however from memory you clearly said that judges could not interpret legislation and yes at one point you did say change it. Well as I explained before in many cases judges do just that. In Carey the judge did exactly that, he decided what was required under a S77-79 request. The legislation says as we know

For S78

Duty to give information to debtor under running-account credit agreement.

(1)

The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the state of the account, and

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

(c)

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

I know that you maintain that what he said was fine and he applied the law correctly but if you look, he has stated that a recon agreement is allowable , ok so far but the recon is of the executed agreement , ok still with me?

The recon does not need the customers signature on it according to the carey judgement , agree?

BUT
S61 states that an agreement is not properly executed unless it contains such things as a signature

(1)

A regulated agreement is not properly executed unless—

(a)

a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b)

the document embodies all the terms of the agreement, other than implied terms, and

(c)

the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

So following on logically the judge here has made up his interpretation of the law that doesn't fit with what is included . How can a copy of the executed agreement not have the signature as until it has the signatures it is not properly executed.

So I am afraid m'boy that judges can and do interpret the law in ways that add or omit parts of legislation

The courts/tribunal do not have the power to add interpretations to statutory law, only parliament does

which was your quote is clearly not the case , to borrow a phrase from nemesis, the real world

[FlamingParrot]

Re: have been given 5 days then i have been given 5 days then i have to

Yes they clearly started formal proceedings from the moment you were suspended and lack of making clear the investigatory was informal and not part of those formal proceedings would have meant they fell foul of section 10 and section 13(4) Employment relations 1999 as clearly in your case the chance of the so called investigatory meeting resulting in further disciplinary action (remember investigatory meetings must not on their own result in disciplinary action) or disciplinary punishment would have been unavoidable. So yes it would have made your dismissal unfair on basis they failed to allow you your right to be accompanied. They would have also had difficulties arguing the the meetings were informal given they'd clearly already started formal proceedings by first inviting you to disciplinary hearing, when first they should invite you to informal investigation and not start formal proceedings until after the investigatory meeting and subsequent investigations have been completed. I think the UOL gave you such low chance of success based more on the reason for dismissal more than anything else to be honest. So whilst you may have won your claim for breach of your statutory right to be accompanied, you may not have won your overall claim for unfair dismissal!

That was precisely my point and I'm glad we agree on this one. Procedural issues alone are not enough to win at the ET when the employers have a 'good reason' for dismissal, even though in my case above the alleged gross misconduct was laughable, :rant: hence the reason why so many people got involved and they all thought I had a good case; what with all the procedural issues and the rather silly arguments for dismissal. However, at the end of the day, it was allegedly a breach of contract to be promoting my services independently (even though I wasn't a company director which was also banned under the contract) as well as to showcase the work I did on a public website whilst still employed by them.

I reckon the relevance of things like being accompanied at meetings is higher in the overall scheme of things when the allegations are more of the "he said", "she said" kind; cases involving alleged discrimination, racism, harassment, etc. where there's no physical evidence and it all hinges on statements from people who may or may not be impartial. In my case the evidence was there and the investigation meetings were just a formality so they could say they'd followed the process, even when they had no intention of following it to start with, having planned the disciplinary for the day after, without any time for any investigation to take place. It was only when I challenged them with a well-written letter that they decided to start following the process. It's not unlike creditors who issue a claim without any evidence hoping you won't defend, and only start digging things up when you challenge them.

Plus it wasn't till 2005 when the outcome of the skriggs case highlighted the need to make clear investigatory meetings are informal and not part of formal disciplinary proceedings i.e so then its clear said meeting will not on its own result it further disciplinary action/punishment, where as a meeting under formal proceedings certainly will result in further disciplinary action or punishment!

That would explain why that fact was never mentioned even by people who clearly knew their stuff. :sad: Although Skriggs was initially dismissed in 2002 (before me), such is the nature of legal proceedings that it took until 2005 for the conclusion to be reached so no-one would have known about it in 2003. :ohwell: