Employers do not need to conduct a disciplinary with an open mind!

[AuntMay]

Hello. According to acas and all the employment sites I have been on, an employer must conduct a disciplinary and an appeal with an open mind. At my tribunal the employer admitted that they did not have an open mind when dealing with me. The judge accepted their reasons which were, as far as the employer was concerned I had admitted to the allegations at the investigation which meant I was guilty. They had then decided on guilt before the disciplinary and appeal hearings which meant the hearings were just to find out why I did what [they say] I did. That is what they told the judge. The judge said, while it was premature of them to decide on guilt before the hearings, it did not affect the outcome of the hearings. The thing is, I did not admit to the allegations, I defended against them.

Anyways, just letting everyone know that, contrary to popular belief, employers do not need an open mind when conducting disciplinary or appeal hearings.

[AuntMay]

Re: Employers do not need to conduct a disciplinary with an open mind!

According to the judge at my tribunal, an employer's belief of staff performance is reasonable even when the employer has no firsthand knowledge of the performance in question and, even when the employer had no hearsay or facts to rely on because they did not investigate staff performance. Acas and all the employment sites I have been on say a belief can only be reasonable if there are reasonable grounds for the belief. But that is not the case at tribunal because all the employer has to say is they believe staff were underperforming and the judge will take it as gospel without any evidence or grounds to back it up.

Just thought id share this for information purposes,

[charitynjw]

Re: Employers do not need to conduct a disciplinary with an open mind!

Hi Aunt May

This area of Employment Law (reasonable belief), perhaps more than any other, is firmly loaded in favour of the employer.

The ET will be very reluctant to disbelieve an employer's reasonable belief, & they are precluded from substituting their opinion.

Case law shows this time & time again.

The buzzwords are 'range of reasonable responses'
Post Office v Foley; HSBC Bank plc v Madden [2000]
http://www.oldsquare.co.uk/news-and-...bank-plc-v.-jo

[AuntMay]

Re: Employers do not need to conduct a disciplinary with an open mind!

From what ive read, including your link, the requirement as written down and as stated in Burchell is that for a belief to be reasonable it must have reasonable grounds. In practice that is not the case; as I found out the employer does not need any grounds for their belief let alone reasonable grounds. Its not just that area of law which is loaded in favour of the employer, from experience I find the judge is loaded in favour of the employer too.

[charitynjw]

Re: Employers do not need to conduct a disciplinary with an open mind!

From what ive read, including your link, the requirement as written down and as stated in Burchell is that for a belief to be reasonable it must have reasonable grounds. In practice that is not the case; as I found out the employer does not need any grounds for their belief let alone reasonable grounds. Its not just that area of law which is loaded in favour of the employer, from experience I find the judge is loaded in favour of the employer too.

[MENTION=26290]mariefab[/MENTION]..........I would be interested to get your opinion on the above.

For the record, I tend to agree with Aunt May, particularly at ET level.

[mariefab]

Re: Employers do not need to conduct a disciplinary with an open mind!

I believe that it does seem that way to a lot of claimants. Often, they don't have legal assistance. So, because they don't realise that at every stage it's up to them to provide the evidence (preferably written) that the employer did something wrong, they expect the Tribunal to see the obvious or read between the lines. The Tribunal doesn't do that, everything needs to be spelled out.
That said, sometimes Tribunals get it wrong.

[Openlaw15]

Re: Employers do not need to conduct a disciplinary with an open mind!

I believe that it does seem that way to a lot of claimants. Often, they don't have legal assistance. So, because they don't realise that at every stage it's up to them to provide the evidence (preferably written) that the employer did something wrong, they expect the Tribunal to see the obvious or read between the lines. The Tribunal doesn't do that, everything needs to be spelled out.
That said, sometimes Tribunals get it wrong.

The employment tribunal is no different to court in effect although in theory it's so supposed to be less formal. If there is no employee written statement it's like a gagging order. The Tribunal does not take sides, its role is to determine whether the employee applicant has a case or not.

[AuntMay]

Re: Employers do not need to conduct a disciplinary with an open mind!

it's up to them to provide the evidence (preferably written) that the employer did something wrong

In my case, I could only state I was not underperforming, I could not disclose my performance review because the employer would not supply it to me as part of my disciplinary or as part of a subject access request I later made. At tribunal the employer said I was underperforming but did not disclose my performance review to back this up. The employer admitted to not looking at my performance review and when asked why he believed I was underperforming he just said it was his job to know.

As for the tribunal not reading between the lines, the Judge did a good job of reading between the lines when it came to the employer. Rather than the Judge asking the employer to clarify certain points, the judge asked the employer 'when you said [this] did you actually mean [that]'. And of course what the judge suggested sounded a lot better than what the employer was saying so the employer always agreed with the judges interpretation. The judge spent quite some time leading the employer through the entire tribunal. I didn't have a chance of winning with this judge.