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

[Berniethebolt]

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

From my understanding the Skriggs case wasn't about the dismissal per se because he was reinstated with conditions but more about an investigation meeting following allegations of gossip at work and also about his right as a Trade Union Rep to be allowed time off to attend trade union meetings. Of course these were in the 'good old days ' when we had a centre right party in government as opposed to now with out totalitarian government in place

[judgemental24]

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

Another thing to consider:

An employer does not need any concrete evidence to prove an employee is guilty of the charge and dismissed.

All the employer has to show is reasonable suspicion the employee is culpable on the evidence presented.

Defining what is reasonable is another matter though.

[Berniethebolt]

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

Another thing to consider:

An employer does not need any concrete evidence to prove an employee is guilty of the charge and dismissed.

All the employer has to show is reasonable suspicion the employee is culpable on the evidence presented.

Defining what is reasonable is another matter though.

Indeed, when I sacked someone for theft I was told that all I needed was reasonable suspicion ..balance of probabilities and all that.

However that was many years ago and from what i have heard she has gone on to make a good career for herself so maybe I did her a favour

[Trev1234]

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

I do raise my eyebrow when the word reasonable is used - it seems to encompass any action binded with reasonable response and band of action. What is reasonable is rather subjective and my limited experience means as long as someone can justify the sction it's reasonable - leading to a rather wide scope to dismiss. Maybe I'm just bitter! 😋

[Berniethebolt]

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

I do raise my eyebrow when the word reasonable is used - it seems to encompass any action binded with reasonable response and band of action. What is reasonable is rather subjective and my limited experience means as long as someone can justify the sction it's reasonable - leading to a rather wide scope to dismiss. Maybe I'm just bitter! 

I entirely agree however there are times you have to be pragmatic
At the moment it seems that according to the DWP if you can breathe it is reasonable to assume you are fit to work

[Trev1234]

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

Mmmmm if that's reasonably pragmatic!

[teaboy2]

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

and


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.

Wrong - in Skriggs case the company made clear to him that the investigation was not a disciplinary hearing and not part of a formal disciplinary procedure - its also worth noting it was a grievance investigation, so wasn't part of a disciplinary process and no disciplinary action was actually taken by the company against skriggs in respect of the grievance! What the court was saying in the part you quoted was just because a meeting happens it doesn't mean its formal one that forms part of a formal disciplinary procedure that can lead to further disciplinary action or punishment i.e inviting you in to office to ask why you were 5 minutes late that day isn't formal or likely to lead to disciplinary action!

As for - “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.”

Well that proves my point doesn't it?! as how the hell can a investigatory meeting held under formal disciplinary procedure/action be informal or not form part of the formal disciplinary procedure. So in other words if they fail to state its informal or make clear the disciplinary action hasn't started already by making clear that such investigatory meetings do not form part of the formal disciplinary procedure, then formal disciplinary actionn has already started. Disciplinary procedures have two parts to them first the informal half which is the investigatory part. Then there's the formal half where formal disciplinary action is taken - if you do not make clear that the first half is informal then the whole procedure is deemed formal disciplinary action, as the employee will not know otherwise as to when disciplinary action has started against them and the onus is on the employer to inform the employee as to what is formal part (i.e. when disciplinary action starts) and what is informal (i.e investigation but no disciplinary action has been started).

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 . - Oh my god - what part of what the EAT said about the meeting itself being informal and not part any formal disciplinary action and therefore section 10 didn't apply as a result of it being informal, did you not understand the consequences off, should it had been a formal meeting held under formal disciplinary proceedings (i.e disciplinary action)?! In other words the only reason said section 10 didn't apply was because it was an informal meeting, because the company had made clear it was, and because it was an investigation into a grievance and no disciplinary action was actually being taken against skrigg at time the meeting occurred (and indeed no disciplinary action was taken afterwards either) - Yet if the opposite had been true and it had been formal (had company failed to state it was informal) and formal disciplinary action started then section 10 would have applied because such formal meeting under formal disciplinary action could have resulted in further disciplinary action or punishment as per section 13 (4)- its not that hard to see what the opposite effect would have been if the meeting had actually been formal and indeed formed part of formal disciplinary action against skriggs!!

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 .i beg to differ!! "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” - in other words because it was informal and not a formal meeting under formal disciplinary action against skriggs then it didn't amount to a disciplinary hearing. The fact that it was informal and not part of any formal disciplinary action against skriggs played a bloody big role in the EATs decision!!

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 - They all say the skriggs case made the need to make clear its informal vital, funny how your now trying to discredit the advice of lawyers, based on the result off the skrigg case, just to try prove your own argument. 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 - Thats because it isn't but it does make a big difference as to when section 10 applies to a meeting or when said meeting can result in actions mentioned in section 13 . 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). So you know more than lawyers do, do you?!! I can tell you now, they wouldn't make such recommendations if there was no legal pitfall to fall into, by not following said recommendation!!



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. I already have provided it, but you simply can not see past what is written to see the consequences should the facts or circumstances had been different, something the EAT was hinting at and something that the lawyers picked up on causing them to make such recommendations in the first place!! Not my fault if yourself or others don't have the ability to see it or understand it!!

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

No i never said they couldn't interpret law, all through my argument on this completely irrelevant to the thread argument, that you brought up as a side issue out of the blue. I have maintained the point that they can not add, amend, change the law to suit their interpretation as the judge did in the pay slip case, and doing so would be wrong in law! They are perfectly free to interpret it as they see fit, so long as said interpretation is inline with the written law.

For S78


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

LOL - And you said i didn't understand basic law - Surely you must know that section 61 refers to the creation, entry and signing of agreement for it to be legally binding and is not connected to the producing of a copy of said executed agreement under section 78. Off course section 61 requires a signature at time said document is created, it is a contract that is being created and entered into, hence why a signature is needed under section 61, like its needed when creating or entering any form of written contract, but section 78 doesn't even mention "signed" it just refers to copy of executed agreement, not copy of "signed" executed agreement - poor play old chap, poor play!! You should leave interpretation of law to judges because with that howler even the judge in the pay slip case did a better job of interpreting law!!



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

See above!!

As for me well i won't be replying to anymore of your posts in this thread! Your howler just showed how illogical your thinking is, and if you can't think logically then no wonder you can't understand my point or see what the consequences of what the EAT said in the skriggs case, had the facts and circumstances been slightly different - The employment lawyers, that you brushed aside like there word has no meaning, did see the consequences and hence their recommendations! So something tells me i am not wrong when they are making such recommendations too!!

[teaboy2]

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

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.


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:

Skriggs was as you know reinstated, then later subjected to a grievance against him, but no disciplinary action was taken against him, said investigatory meeting was in relation to the grievance and it was made clear by the employer it was informal at the time. Thats why he lost, because 1 it was informal and 2 no disciplinary action was actually being taken, nor was there any disciplinary action in relation to the grievance afterwards either. As far as i know he was still employed by them when it went to EAT!

But what some people don't seem to realise is that if it had been formal and not informal and if it had formed part of formal disciplinary action instead of being a meeting held where no disciplinary action was being taken at the time it was held, then the EAT would have decided in his favor as the difference in circumstance and facts would have given grounds for the EAT to decide the opposite to what they decided. And that's why lawyers and HR consultants are all recommending how vital it is to make clear investigatory meetings are informal and do not form part of the formal disciplinary process in there disciplinary policies and to make sure employees are aware of this before any investigatory meeting (i.e given copy of said disciplinary policy when suspended or invited to attend investigatory meeting). I just don't see how it so hard for some people to see the potential legal consequences are for employers if employers fail in that respect!

[Berniethebolt]

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

Thank god you ain't replying anymore

FYI
Although S61 is about the signing of agreements it defines partly what an executed agreement is
The agreement isn't properly executed until it is signed by both parties FACT. If you don't agree with that then following your argument you need to disprove what I have said

S78 is about supplying a copy of the executed agreement which by definition needs a signature therefore if a non signed copy is provided it can not be a copy of the executed agreement now can it?

Therefore in Carey the judge interpreted the law in a way that was different to the way it was written , which you say they can not do. Shame that that is what was done.


This argument started by you making claims that almost all companies include investigation as part of the formal disciplinary proceedings and hence an investigation must be accompanied well I question where you get that info but I suspect that you believe that because it will be played out under grievance and disciplinary.
I also wonder what your definition of almost all companies is, is that all companies listed at companies house, does it include small companies with only one or two employees , or is it the largest companies that employ the majority of people


Just because it goes under a heading of disciplinary procedures still leaves it dependant on the wording and I have never disputed that just your blanket assertions.


In any event not allowing a witness at an investigation meeting, even if that right is written into the contract is unlikely to lead to any claim for unfair dismissal being upheld as you have agreed with.

So in summary , you maintain that there is the right to be accompanied in an informal investigation meeting unless it is clearly stated that it is informal , whereas I maintain that that formal statement is unnecessary. Either way it is not going to affect the outcome of an ET
I know you won't answer but you agree that no witness is needed for a chat about why you were 5 mins late but lets face it that could lead to disciplinary action now couldn't it?

In the same vein , do you need a witness at the return to work interview that many companies are supposed to conduct after a period of absence. Again that period of absence could easily lead to or contribute to a decision to take disciplinary action

[Berniethebolt]

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

[MENTION=49370]Kati[/MENTION]
maybe it is time to close this thread as we have an immovable object and an unstoppable force -it will only end in tears

[Kati]

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

New letter:

[Berniethebolt]

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

I am truly sorry and I hope that your company can find you employment , I know it is of no comfort but at least you have 6 weeks to try to find a job and I would hope that your current employer will give you a good reference.
Sadly as your service is under 2 years I can not see much hope of overturning this however an appeal is always worthwhile. Equally what reasons did the manager give for not wanting you on site any longer, I wouldn't pin my hopes on it but if he said something slanderous or written something libelous that is an angle worth investigating although I doubt it will save your job.
There are only certain things that make unfair dismissal automatic and I think FP listed them at the start and even if you fit one of those characteristics it can be hard work proving it


Once again I am truly sorry and feel chastised at letting personal opinions getting in the way of helping you .

[halsaps]

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

hi have been at the company for 4 years in november 2 at a site in sudbury and 1 year and 9 months in the site i was taken away from i take it that makes a difference then thanks for replying

[FlamingParrot]

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

hi have been at the company for 4 years in november 2 at a site in sudbury and 1 year and 9 months in the site i was taken away from i take it that makes a difference then thanks for replying

It certainly does, :clap2: as long as there's continuity of employment. You need at least two years' service to be able to submit a claim for unfair dismissal with the Employment Tribunal. Obviously we'd need to look at the whole picture but you'd have three months from date of termination of employment to submit a request for ACAS early conciliation to start the ball rolling so there's plenty of time for you to seek advice in case it comes to that. :thumb:

[Berniethebolt]

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

Hi
Have you been given grounds for your dismissal, not just verbal but written grounds or are they going down the redundancy route.
The mere fact that they are paying you and you need to be available for work suggests to me redundancy and that is a whole new ball game .