Tribunal didnt look behind a previous warning used to dismiss me.

[Arlene Reid]

Hello all. I will get right to the point. I had a previous warning on file which was taken into account when I was dismissed. I did appeal the warning at the time it was issued but the company simply rubber stamped it and upheld it. I later appealed the use of the warning to dismiss me as it was issued unfairly. The company did not review the previous warning, they just said they were entitled to use it as it was still live. In my et1 form and tribunal statement I said the warning was issued in bad faith. I did not go into detail about why it was issued in bad faith but the details were in the appeal minutes which were in the bundle. The previous warning was mentioned during the tribunal but only in so much as it existed; no one was asked about its details. The tribunal did not look at the previous warning because they said I did not put forward that it was given in bad faith at the tribunal. They simply accepted it was issued fairly because the company said it was issued fairly.

Would the fact the previous warning was appealed, even if the warning was upheld, give cause for a tribunal to look behind the warning?

Would the fact I put in my et1 form and tribunal statement that the warning was issued in bad faith mean it was put to the tribunal, even if not verbally stated to them at the hearing?

Thank you

[Openlaw15]

Re: Tribunal didnt look behind a previous warning used to dismiss me.

Hello all. I will get right to the point. I had a previous warning on file which was taken into account when I was dismissed. I did appeal the warning at the time it was issued but the company simply rubber stamped it and upheld it. I later appealed the use of the warning to dismiss me as it was issued unfairly. The company did not review the previous warning, they just said they were entitled to use it as it was still live. In my et1 form and tribunal statement I said the warning was issued in bad faith. I did not go into detail about why it was issued in bad faith but the details were in the appeal minutes which were in the bundle. The previous warning was mentioned during the tribunal but only in so much as it existed; no one was asked about its details. The tribunal did not look at the previous warning because they said I did not put forward that it was given in bad faith at the tribunal. They simply accepted it was issued fairly because the company said it was issued fairly.

Would the fact the previous warning was appealed, even if the warning was upheld, give cause for a tribunal to look behind the warning?

Would the fact I put in my et1 form and tribunal statement that the warning was issued in bad faith mean it was put to the tribunal, even if not verbally stated to them at the hearing?

Thank you

Hello Arlene

In general the bundle only entail facts in writing which the tribunal expects you to argue at the tribunal. The employer is not going to bring them up and the tribunal is only looking whether you were treated fairly/ within the law by your employer, so the onus was on you to raise the issue if you through it was relevant. What are your facts, why were you issued with a warning?

[Arlene Reid]

Re: Tribunal didnt look behind a previous warning used to dismiss me.

Hello Arlene

In general the bundle only entail facts in writing which the tribunal expects you to argue at the tribunal. The employer is not going to bring them up and the tribunal is only looking whether you were treated fairly/ within the law by your employer, so the onus was on you to raise the issue if you through it was relevant. What are your facts, why were you issued with a warning?

The warning was for a private post I made on face book. Me and several work colleagues were having a chat and I voiced my opinion on how our employer treats its staff poorly. One of the colleagues took a picture of the conversation and sent it to the employer. Even though the post was private and only those involved in the conversation could see it, my employer said it was public for everyone to see and had damaged the business and brought the company into disrepute. I argued that it was private and that there was no evidence of any damage to the business but they ignored this and went straight to final written warning for serious misconduct. I appealed the warning on the grounds that they had not followed proper disciplinary procedures because they had not shown damage to the business which the procedures clearly state they must do for serious misconduct. At worst I should have got a first written warning if they did things the way the disciplinary procedures says they have to. They ignored me again and kept the warning without investigating if damage was caused to the business. It's not just a case of I feel hard done by for getting this warning, they have ignored their own procedures by issuing it. Had they followed procedures I would not have had this serious warning on file, I would have had a lesser warining which when taken into account at this last disciplinary would itself have led to a final written warning but not dismissal.

[Openlaw15]

Re: Tribunal didnt look behind a previous warning used to dismiss me.

The warning was for a private post I made on face book. Me and several work colleagues were having a chat and I voiced my opinion on how our employer treats its staff poorly. One of the colleagues took a picture of the conversation and sent it to the employer. Even though the post was private and only those involved in the conversation could see it, my employer said it was public for everyone to see and had damaged the business and brought the company into disrepute. I argued that it was private and that there was no evidence of any damage to the business but they ignored this and went straight to final written warning for serious misconduct. I appealed the warning on the grounds that they had not followed proper disciplinary procedures because they had not shown damage to the business which the procedures clearly state they must do for serious misconduct. At worst I should have got a first written warning if they did things the way the disciplinary procedures says they have to. They ignored me again and kept the warning without investigating if damage was caused to the business. It's not just a case of I feel hard done by for getting this warning, they have ignored their own procedures by issuing it. Had they followed procedures I would not have had this serious warning on file, I would have had a lesser warining which when taken into account at this last disciplinary would itself have led to a final written warning but not dismissal.

You should have argued, at the time, that the FB content is inadmissible (not permitted) under normal court rules unless there is permission granted under the hearsay rules, so it would be unfair of the Tribunal to admit (permit) FB private content under Tribunal rules. Why did you let the colleague see the private conversation? The tribunal is a finding of fact so if the tribunal decision has gone against you, you could raise a point of fact. The problem is the FB content was within the paper bundles so it's hard to argue now that this is a new point of fact.

[Arlene Reid]

Re: Tribunal didnt look behind a previous warning used to dismiss me.

The colleague was in the private conversation which is how she was able to take a picture. She did not give a statement to the employer, she just handed the picture over. At the disciplinary I admitted to saying the stuff on face book but showed them it was private as the picture showed the privacy settings. so only those in the conversation would be able to see it. They ignored that and took my admission of the conversation as an admission of damaging the business. The only finding of fact by the tribunal was that I had been given the warning, they did not look into the details even though they were aware I had appealed the warning and they read in my statement that it had been issued in bad faith. What does it take for a judge to look behind a warning because stating it was issued in bad faith does not work?

[Guest]

Re: Tribunal didnt look behind a previous warning used to dismiss me.

I suspect that the fact the warning was issued and upheld gived the company the right to take it into consideration when deciding to dismiss you. The problem, as you found out is that although only people in the conversation could see the comment at the time, there was nothing stopping anyone copying it and putting it in the public domain.

The offence for which you were dismissed, was it potential gross misconduct or was it ordinary misconduct which the company then decided to dismiss you on because of the previous final written warning?

[Arlene Reid]

Re: Tribunal didnt look behind a previous warning used to dismiss me.

If someone copied the conversation and put it in the public domain, then wouldn't they be the ones making it public and therefore the ones who damaged the business? The company had the right to take the previous warning into consideration only if it was issued fairly. They knew well it was not. The offence I was dismissed for they said was serious misconduct but again they did not follow their own procedures, if they had it would have been a lesser offence than serious misconduct. They bumped it up to serious misconduct in order to dismiss me.

[Guest]

Re: Tribunal didnt look behind a previous warning used to dismiss me.

If your name was linked with the post then it would still be done to you.

TBH without greater detail of what you said and did and what the offence was it is almost impossible to know what is going on.

You do not say how they handled things unfairly

The time to take issue with the original warning would have been when it was issued, did you exhaust the companies appeal procedure ?

[Arlene Reid]

Re: Tribunal didnt look behind a previous warning used to dismiss me.

I'm not asking if the warning was unfair, in my opinion it was. I want to know how you get a judge to look at it during a tribunal because telling them it was unfair does not work?

[Openlaw15]

Re: Tribunal didnt look behind a previous warning used to dismiss me.

I suspect that the fact the warning was issued and upheld gived the company the right to take it into consideration when deciding to dismiss you. The problem, as you found out is that although only people in the conversation could see the comment at the time, there was nothing stopping anyone copying it and putting it in the public domain.

The offence for which you were dismissed, was it potential gross misconduct or was it ordinary misconduct which the company then decided to dismiss you on because of the previous final written warning?

The Tribunal deals with the facts as they are - not any speculative. ie it would be speculative to say that the information would be used to hurt the company by publishing it in a the domain of the public. So, Tribunal deals with the facts as they are. The problem was/ is, the Tribunal is not going to play defence unless you give the Tribunal judge something to work with. The Tribunal is meant to be independent. I would try to argue in a reconsideration by the Tribunal that in terms of evidence your main defence was denied to you owing to it not being heard. I doubt it will make a difference for said reasoning above. You may next, if it fails and it likely will, have a chance/ not likely though, to argue the evidence on a point of law to an Employment Appeal Tribunal. It's the problem with the employer's lawyer and a high chance of costs against you, which can be at least £10,000 or more.