Dismissal After Trial/Probationary Period

[Trigger33]

Hello,

I was wondering whether anyone could be so kind to clarify my standing regarding my dismissal on Friday 13th November.

I recently raised a Health & Safety Issue within the company on Wednesday 11th November, and provided my boss with adequate evidence to clarify there was an issue. However, this lead to a meeting being called with my boss and supervisor. There was a colleague there taking notes, and I did received a copy of the notes (albeit heavily edited).

Two days after this meeting, I was pulled back into the office and was told that my standard of work isn't up to the companies', and accordingly I was being dismissed. I had no previous verbal, written or final warnings.

Now, I was offered employment on the 1st of September with a 2 month Trial/Probationary period. I was dismissed on the 13th of November, which is outside of the Trial/Probationary window.

During my Trial/Probationary period ending, and the meeting, there was no discussion about contract meetings, and I was asked to come in each day as normal, and complete my usual day-to-day tasks. I assumed that this meant an implied contract was in place, and that I was now a fully fledged member of the team, and therefore if I was to be dismissed, the correct procedures should be used (Disciplinary etc).

The main aspects of the issue I would like clarification on are as follows;

1. Has the company breached contract by dismissing me outside of my probationary period without following the disciplinary procedure?

2. Even though the letter of dismissal letter doesn't mention the H&S issue I raised, could/would it be assumed that these events are linked? (Our professional relationship was satisfactory until that point).

3. Are there any further actions I can take?

What would be my next steps? I'm clearly frustrated as I did enjoy the job, and did enjoy working with the team. It just so appears in this case they wanted to get rid of me ASAP.

Would copies of letters and documentation be of use?

Kind Regards,

Jamie.

[vanman]

Re: Dismissal After Trial/Probationary Period

Complaints that count as whistleblowing

You’re protected by law if you report any of the following:

• a criminal offence, eg fraud
• someone’s health and safety is in danger
• risk or actual damage to the environment
• a miscarriage of justice
• the company is breaking the law, eg doesn’t have the right insurance
• you believe someone is covering up wrongdoing

https://www.gov.uk/whistleblowing/wh...-whistleblower

[matt3942]

Re: Dismissal After Trial/Probationary Period

This may not qualify as whistleblowing - it depends on the nature of the issue you reported and your reasons for reporting it. If you can tell us a bit more that would be helpful.

Even if this doesn't qualify as whistleblowing, your dismissal may be automatically unfair if you can demonstrate it was because of the health and safety issue you reported. TBH this is often very difficult to demonstrate.

Presumably you have been employed for fewer than two years? If your employer's dismissal procedure forms part of your contract, and that procedure wasn't followed, you will have a claim for wrongful dismissal/breach of contract.

[Trigger33]

Re: Dismissal After Trial/Probationary Period

Hi Vanman & Matt,

Many thanks for your replies.

Matt,

I reported a Health and Safety issue where the vans were being overloaded, and to an extent where there could be serious implications to employees and the public. Upon presenting the weighbridge ticket to my manager, I was pulled into a meeting room. The notes do vary quite a bit from what took place, and they were only presented to me on the Friday at the beginning of my dismisal meeting.

Please see attached copies of the letters, along with a copy of the weighbridge ticket.

What do you think?

[matt3942]

Re: Dismissal After Trial/Probationary Period

I think it could be considered whistleblowing because there is a public interest element. Even if this wasn't the case, the date of your health and safety meeting, and your dismissal are too close together to likely be a coincidence.

I think you do have the basis for an unfair dismissal case, and personally I would pursue it because it annoys me when employers try to get one over on their employees; however, you have to consider the expense and hassle of bringing a claim, and what you're likely to get out of it. Perhaps speak with an employment solicitor to find out what the likely outcome would be.

[judgemental24]

Re: Dismissal After Trial/Probationary Period

The problem with this is how the health and safety issue was raised

Was it an informal comment/ observation or was it an actual protected disclosure?
Protected disclosures are for only serious health and safety violations or criminal activity

I agree with Matt that it is to much of a coincidence but in reality it would seem there is not a lot you can do if they are using capability as an excuse within the 24 month period

I feel only a Tribunal can decide that but i personally am not that optimistic of a positve result myself if you go down that road

[vanman]

Re: Dismissal After Trial/Probationary Period

ok in my opinion its looks like they dismiss you because you reported the health and safety issue .
after you had told the manager on the 11th that your vehicle was overweight
then and only then they ask you into a meeting and supplied you with the notes setting out the reason for meeting ( YOU HAVE THE PROOF ON THE NOTES )
which points out that you had weighed your van and it was overloaded.
then on the 13th they dismissed you

3 Complaints that stand out count as whistleblowing

• a criminal offence, eg fraud
  
• someone’s health and safety is in danger
• risk or actual damage to the environment

An overloaded vehicle will not only cause damage to roads and to your vehicle but will
also put your drivers and other road users at risk. Overloading a vehicle:
Makes the vehicle less stable, difficult to steer and take longer to stop.

Vehicles react differently when the maximum weights which they are designed to carry are exceeded.
The consequences can be fatal;

Puts massive strain on vehicle tyres.

Overloading can cause the tyres to overheat and wear rapidly which increases the chance of premature, dangerous and expensive failure (such as blow outs);
it Means insurance cover is void.
Overloading a vehicle is illegal and therefore
insurance cover can be void if the vehicle is involved in a crash;

Responsibility, legislation and guidelines

Ensuring a vehicle is not overloaded is the responsibility of both the operator and the driver. In addition to this, if anyone else causes or permits an overloaded vehicle they may also be charged with committing an offence.

All companies have a ‘duty of care’ under the Health and Safety at Work Act 1999 for the safety of employees at work. If someone is driving on your behalf, they are as much ‘at work’ as if they were in a factory or an office. This means that an employer must do all they can to ensure the safety of that driver,
including having policies in place to ensure that their vehicle is not overloaded. The Act also places a duty of care on the employer to carry out suitable risk assessments.
The operator has a moral and legal responsibility which is shared with the driver of the vehicle.

The Road Traffic Act 1988
requires “vehicle users” to ensure that vehicles are not overloaded.
If a vehicle is found to be overloaded both the driver and operator could be prosecuted or cautioned.Legislation imposes fines of up to Ł5,000 for each offence
That means a fine for each overloaded axle plus any overloading on the total weight.
Also, if a vehicle is dangerously overloaded the driver could face a charge of Dangerous Driving which carries a maximum penalty of two years in prison. Other offences within the Road Traffic Act include refusal to allow the vehicle to be weighed and obstruction of an officer which also carry a maximum fine of Ł5,000. If a vehicle is overloaded and results in someone being killed,both driver and operator could face going to jail for Manslaughter or Death by Dangerous Driving.

http://www.transportsfriend.org/road/loads/over.html

[judgemental24]

Re: Dismissal After Trial/Probationary Period

People are still missing the point

If as an employee you have a health and safety concern you first raise it with the employer

A protected disclosure is if you then take that complaInt to outside enforcement agencies such as the HSE, Gas Safe, Enviromental Health etc and suffer detriment by your employer because of it

That has not happened in this case as the complaint was only raised with the employer

This will be covered under the Management of Health and Safety at Work Regulations 1999

You can refuse an instruction from your employer under section 100 Employment Rights Act 1998 with health and safety issues

[vanman]

Re: Dismissal After Trial/Probationary Period

People are still missing the point

If as an employee you have a health and safety concern you first raise it with the employer (he did then got the sack )

A protected disclosure is if you then take that complant to outside enforcement agencies such as the HSE, Gas Safe, Enviromental Health etc

That has not happened in this case as the complaint was only raised with the employer

Sorry you haven't read the link properly
. What is a whistleblower

You’re a whistleblower if you’re a worker and you report certain types of wrongdoing. This will usually be something you’ve seen at work - though not always.
The wrongdoing you disclose must be in the public interest. This means it must affect others, eg the general public.
An overloaded vehicle will not only cause damage to roads and to your vehicle but will
also put your drivers and other road users at risk. (general public)


You’re protected if you’re a worker, eg means example such as a police officer, NHS employee, office worker, factory worker

[judgemental24]

Re: Dismissal After Trial/Probationary Period

I myself am NEBOSH registered and hold a Diploma in Occupational health and safety in the work place

Not to mention an Area health and Safety rep for 20 years for a national trade union

What the law states and what you think the law states are totally opposite

[vanman]

Re: Dismissal After Trial/Probationary Period

I myself am NEBOSH registered and hold a Diploma in Occupational health and safety in the work place

Not to mention an Area health and Safety rep for 20 years for a national trade union

What the law states and what you think the law states are totally opposite

do you know anything about driving laws
ok what in your opinion what did go on here

[judgemental24]

Re: Dismissal After Trial/Probationary Period

Yes i am of the opinion by raising the issue with the employer he has been labled as a troublemaker and they are using capability as a reason to get rid of him

Driving laws??

Is that HGV, LGV, British Domestic Driving Hours??
7.5 Tonne, 17.5 Tonne and above??
Fixed static cab?

[des8]

Re: Dismissal After Trial/Probationary Period

In an attempt to calm an incipient "incident" here's what ACAS have to say about "Whistle blowing Public interest disclosure"
http://www.acas.org.uk/index.aspx?articleid=1

• [*=left]Disclosures should be made in the public interest.
  [*=left]If workers can not go to their employer with the disclosure first they should contact a prescribed person or body (guidance is available from GOV.UK - Blowing the whistle: list of prescribed people and bodies).
  [*=left]If workers are dismissed because of whistleblowing they may claim unfair dismissal.
  [*=left]A tribunal will have the power to reduce any compensation by up to 25% if they think the disclosure was made in "bad faith".

If workers bring information about a wrongdoing to the attention of their employers or a relevant organisation, they are protected in certain circumstances under the Public Interest Disclosure Act 1998. This is commonly referred to as 'blowing the whistle'. The law that protects whistle-blowers is for the public interest - so people can speak out if they find malpractice in an organisation. Blowing the whistle is more formally known as 'making a disclosure in the public interest'.
Qualifying disclosures are disclosures of information where the worker reasonably believes (and it is in the public interest) that one or more of the following matters is either happening, has taken place, or is likely to happen in the future.

• [*=left]A criminal offence
  [*=left]The breach of a legal obligation
  [*=left]A miscarriage of justice
  [*=left]A danger to the health and safety of any individual
  [*=left]Damage to the environment
  [*=left]Deliberate attempt to conceal any of the above.

If a worker is going to make a disclosure it should be made to the employer first, or if they feel unable to use the organisations procedure the disclosure should be made to a prescribed person, so that employment rights are protected.
Workers who 'blow the whistle' on wrongdoing in the workplace can claim unfair dismissal if they are dismissed or victimised for doing so. An employee's dismissal (or selection for redundancy) is automatically considered 'unfair' if it is wholly or mainly for making a protected disclosure. From 25th June 2013 if a case goes to a tribunal and the tribunal thinks the disclosure was made in bad faith, it will have the power to reduce compensation by up to 25%.
A worker will have to show three things to claim PIDA protection:

1. [*=left]that he or she made a disclosure
   [*=left]that they followed the correct disclosure procedure
   [*=left]that they were dismissed or suffered a detriment as a result of making the disclosure.

[vanman]

Re: Dismissal After Trial/Probationary Period

Yes i am of the opinion by raising the issue with the employer he has been labled as a troubklemaker and they are using capability as a reason to get rid of him

Driving laws??

Is that HGV, LGV, British Domestic Driving Hours??
7.5 Tonne, 17.5 Tonne and above??
Fixed static cab?

then i i must point you to http://www.transportoffice.gov.uk/cr...CONT067324.pdf
to update you

Driver understanding

Companies need to have a “safety culture” in place which ensures that drivers understand
weight legislation and immediately report any concerns that a vehicle is illegally overloaded to
their manager. Their manager should investigate all concerns immediately to prevent overloading.

[judgemental24]

Re: Dismissal After Trial/Probationary Period

Yes the manager takes over and investigates any concerns raised by the employee

Management of Health and Safety at Work Regulations 1999

The Protected Disclosure Act only applies if that discl;osure has been made to outside regulatory authorities and the employee then suffers detriment from the employer because of that disclosure

THERE HAS BEN NO PROTECTED DISCLOSURE MADE BY THE EMPLOYEE

Only a health and safety concern to the employer by the employee

They are using capability as an excuse to terminate his employment, not a protected disclosure

To claim unfair dimissal you wil have to prove your dismissal was a direct result of of raising that health and safety concern

An example of unfair dismissal with health and safety is if you refused to drive a lorry knowing the door does not shut properly, or drive with no wing mirrors

That comes under the Construction and Use Regulations by the way

Please cease and desist posting up links that are irrelevant, even if well meant