Which
leads me to the second point:
2.1
The reason for the dismissal was given as 'Some Other Substantial
Reason'. This has been upheld in spite of the fact that it has been
admitted in the letter of dismissal and in Mrs Saunder's witness
statement that the alleged 'misconduct' was not serious enough to
warrant dismissal. As stated above: the allegations were based on
'lots of little things.' It seems to have been overlooked that
dismissal under this category has to be 'substantial.' It has been
overlooked that in her statement Mrs Saunders accepts that I did not
know what 'misconduct' I had been accused of.
2.2
The Tribunal failed to look in detail at the 'breakdown in
relationship' or 'trust and confidence' that was cited as the reason
under SOSR. As the alleged 'misconduct' described did not cross the
line, how could the allegations then be sufficient to lay the blame
on me for the breakdown of the relationship? Please read point 34 of
my witness statement and the extracts from my closing submission. I
have described, with evidence, how my relationships with my
colleagues were not irretrievable at the culmination of the
grievance. It was the long suspension and the aggressive
disciplinary that soured our relationships. As would be expected by
any reasonably minded person, after such a long suspension and such
an aggressive disciplinary, my colleagues were too embarrassed to
face me or to accept me back into the workplace. Please read the
section from my closing statement 'I did not contribute to my
dismissal.'
2.3
The Tribunal failed to examine the circumstances of the suspension
and the ultimate effect. My perspective was not considered.
I
would like to refer to:
Crawford
and
another v
Suffolk Mental Health Partnership NHS Trust[2012]
EWCA Civ 138 CA
Suspending
Employees During Disciplinary Hearings
In
Crawford
v Suffolk Mental Health Partnership NHS Trust,
the employer referred a matter of alleged gross misconduct that arose
out of the care given to a patient, to the Police. Describing this as
"little short of astonishing", Elias LJ noted:
- Hospitals in this situation, although they must be seen to act transparently, owe duties to long-serving staff;
- Being under the cloud of possible criminal proceedings is a very heavy burden;
- Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet "criminal" being applied to the conduct.
Elias
LJ also doubted whether suspension had been appropriate in this case,
and observed that suspension
should not be a knee-jerk reaction "if it is, it will be a
breach of the duty of trust and confidence. Suspended employees will
frequently feel belittled and demoralized".
Nothing
I did even came near the category of 'criminal'. But the Respondent
has been excused for suspending me without any
explanation. My suspension cannot be described as a 'knee jerk
reaction' to any misconduct as all of the alleged misconduct occurred
months and even up to a year prior to the suspension. Any fair
minded person would see clearly that it was a 'knee jerk' reaction to
my disclosures about bullying in the workplace that were made through
the grievance. Allegation three is in relation to an action I took
while suspended: The further disclosures I made to the correct
reporting officer four months into the suspension tipped the balance
and caused my dismissal. It cannot be denied. The Respondent put it
in an allegation at dismissal level and upheld it. See point 2.7
below.
2.4
All the evidence points to the same conclusion: namely that 'People
Management' dealt with the grievance and the disciplinary in an
aggressive and vindictive manner. There is open criticism throughout
all the documents for my pursuance of a grievance and for making a
formal confidential disclosure. There was no irretrievable breakdown
between myself and my colleagues at the point of suspension. In my
witness statement I cited evidence from the Respondent's own
documents that shows that this is the truth.
2.5
Members of 'People Management' decided that I would not be allowed
to return to work. In the early stages of the suspension
periodically I asked what was happening. I was offered a compromise
agreement and then redundancy, the former of which came with a threat
that I may be dismissed. Regarding redundancy, we were still
recruiting in my department. SOSR was used as a smokescreen for
another reason. As one of my fair minded observers commented – it
was a 'cop out.' Referring to:
|
Leach v The
Office of Communications (2012) EWCA Civ95
|
|
Unexpected
difficulties are bound to crop up in the course of efforts to
reconcile the statutory rights of an employee to procedural and
substantive fairness and the legitimate interests of the employer.
Underhill J commented, in particular, on the increasing number of
cases in which an employer, as here, gives "breakdown of trust
and confidence" as the reason for dismissal. The trust placed by
an employer in an employee is at the core of their relationship,
which can break down in a wide spectrum of circumstances. Some cases
fall short of a "conduct" reason for dismissal. The
legislation is clear: in
order to justify dismissal the breakdown in trust must be a
"substantial reason." Tribunals
and courts must not dilute that requirement. "Breakdown
of trust" is not a mantra that can be mouthed whenever an
employer is faced with difficulties in establishing a more
conventional conduct reason for dismissal.
Secondly,
the ET was entitled to conclude, on the facts of the case as found by
it, that the reason for the Claimant's dismissal was a "substantial
reason" within s.98(1)(b). The mutual duty of trust and
confidence, as developed in the case law of recent years, is an
obligation at the heart of the employment relationship. I would not
wish to say anything to diminish its
significance. It
should, however, be said that it is not a convenient label to stick
on any situation, in which the employer feels let down by an employee
or which the employer can use as a valid reason for dismissal
whenever a conduct reason is not available or appropriate. The
circumstances of dismissal differ from case to case. In order to
decide the reason for dismissal and whether it is substantial and
sufficient to justify dismissal the ET has to examine all the
relevant circumstances.
That is what the ET did with regard to the nature of the Respondent's
organisation, the Claimant's role in it, the nature and source of the
allegations and the efforts made by the Respondent to obtain
clarification and confirmation, the responses of the Claimant, and
what alternative courses of action
were reasonably
open to the Respondent.
In
contrast to this case my case is highly significant in that the ET
did not
examine all the
relevant circumstances,
particularly the
source of the allegations.
There was no clarification of the allegations, and no evidence. My
responses were not
part of the investigation by the Respondent and then in turn by the
Tribunal. This is very clear in the investigation report and in
Judge Parker's reasons. Judge Parker quotes from the Respondent's
statements which are just bare denials and overlooks my responses
which include evidence that cannot be refuted.
Tribunals
practice and Procedure Edward Jacobs: Point 4.280 – A Tribunal
makes an error of law if it refuses to hear or to take account of
evidence that is admissible on the issues in dispute. 4.286 Every
finding for which there is no evidence is perverse.
In
contrast to the case above, no alternative
courses of action were
considered. I was taken straight to dismissal level on euphemistic
allegations that were sprung on me.
No
alternatives to dismissal were offered. In the disciplinary hearing I
was asked if I would want to be transferred in another area of work.
I said I was happy in my job and it suited me because of my previous
experience and background. I made the point in the Tribunal Hearing
that I was not told 'another
job or no job' and
that nothing had been suggested.
2.6
It is apparent to anyone reading Judge Parker's reasons that he has
made excuses for the Respondent at every point in the proceedings,
overlooking essential details. These are excuses that the Respondent
themselves have not put forward. In legal jargon I have read that
this is 'stepping into the arena.' My fair minded observers would put
this as simply 'siding with the Respondent regardless of what they
did.' To give one example: In the reasons the long suspension is
defended asserting that there was nothing to show that the
investigation did not continue throughout the suspension period, that
there were a number
of
bodies and persons to be interviewed and even that it took some time
to arrange an occupational health appointment. I made this
appointment, and it was only around one hour.
The
only
reason given by the Respondent for the long suspension was for me to
have time to 'reflect on my behaviour.' I cited the evidence for
this in the Tribunal Hearing. It is written in the Investigating
Officer's Report prepared for the disciplinary.
Again
my witness statement has not been considered. At point 26 I cited
evidence that the decision to investigate was not made until 21st July 2009,
four months after I had been suspended. I have attached the letter
from Joanne Carpenter of 'People Management' that I included as
evidence. She apologises for any stress this may have caused.
The
fair minded observers who have considered these excuses put forward
by the Tribunal have described it as utterly ridiculous, beyond
belief and a disgrace to British Justice. There is clear evidence
that cannot be disputed. No reasonable tribunal would reach such a
decision.
2.7
It is clear that if I caused the breakdown, it was by making
disclosures under the Respondent's whistle blowing policy. This makes
my dismissal automatically unfair. The third allegation makes this
blatantly clear: the accusation that I : 'Created an
intimidating, hostile or humiliating working environment by pursuing
a grievance beyond the final stage of the grievance procedure'
was referring to the confidential disclosure I made under the
Respondent's own 'whistle blowing' policy. This was confirmed by the
Reporting Officer, Mrs Hewitt in the disciplinary hearing. It is in
the notes taken at the hearing. Until this point I did not know what the allegation meant. It cannot be true. It was my expectation that the
disclosure would be kept confidential and investigated. I was
reporting injustice and bullying in the workplace. I had every right
to report that the recommendation from the grievance had not been
followed, rendering the whole process a sham, and that I had been
suspended for nearly four months without knowing why.
Mrs
Hewitt victimised me for making this disclosure. Even if I had been
mistaken it should not have been turned against me and used to
dismiss me.
"(1)
A worker has the right not to be subjected to any detriment by any
act, or any deliberate failure to act, by his employer done on the
ground that the worker has made a protected disclosure."
This
is the only allegation that specifies that the relationship was
soured by my actions. Mrs Hewitt is on record in their own notes as
saying it was not nice for my managers to have their names in front
of the the reporting officer. As 'People Management' had made the
decision to ignore the recommendation for mediation, it was her name
as well. This on its own demonstrates that she was not an impartial
'investigating officer.' The bitterness towards me has not been
hidden. It is in the reports and witness statements. Again this
illustrates that there was not a reasonable investigation as
established by the precedents established in British Home Stores v
Burchell, BAILII
case number: [1978] UKEAT 108_78_2007
The
Tribunal overlooked these basic facts that I put to them in my
witness statement, in the Tribunal Hearing and in my closing
statement.
2.8
This part of my story cannot be refuted, and shows that the
process was not only unfair, but that I was victimised for making
disclosures both through the grievance and the suspension.
2.9
In his reasons, Judge Parker claims that there are no references to
any disclosures in my witness statement. This is not true. I have
attached my statement with these references highlighted. In the
Hearing Judge Parker refused to let me use the term 'disclosure' and
corrected me saying they were 'complaints.' It is well documented
that they were complaints made under the Respondent's whistle blowing
policy. In this policy it clearly states that in making disclosures
the actual policy does not have to be specified. The jargon is not
important. There is an assurance that any employee making disclosures
will be protected from retribution. I put my faith in this policy. It
was not followed and there was a breach of the duty of trust and
confidence that I was entitled to under my contract of employment.
2.10
In the judge's reasons it is stated that I continually claim that I
was suspended and dismissed as a direct result of making disclosures
and taking out a grievance and that this was not true. Then later in
these reasons the point that I chose to progress a grievance is cited
as the point at which I caused my own dismissal 'whether I knew it or
not.' This was in the first stages of the grievance. I have shared
this with many fair minded citizens and everyone has come to the
conclusion that this clearly shows that the decision is
contradictory and perverse. In effect the tribunal have endorsed the
Respondent's victimisation of me for attempting to address bullying
in the workplace. I was using the correct procedures under my
contract of employment. I have been urged to ask specifically for an
explanation of this part of the reasons by the fair minded observers
who have shared my story. We are awaiting a response.
2.11
During the Hearing Judge Parker put it to me that choosing to
pursue a grievance over mediation was inflammatory – or words to
that effect. I explained to him that the funding for mediation had to
be approved, that it was not definite and was expected to take some
time. I put forward that a grievance, if it was carried out
professionally should not be aggressive. I also reiterated a point
that is in my witness statement: that I requested mediation
throughout all of the procedures. Again this is evidenced in
writing. It was the employer's decision to delay mediation until the
grievance had been concluded. I did not agree with the grievance
outcome and was entitled to progress it to the final stage. I have
now had my claim dismissed for asserting that right.
2.12
The Tribunal also have overlooked the fact that mediation was
recommended by all of the persons conducting the grievance and that
we had all agreed and requested it. This decision was overruled by employees in 'People Management.' They put themselves above the board of three councillors and decided that mediation would not work, wholly because I had taken out a grievance. Again this is all clearly documented. They made no secret of it.
2.13
Damned if I do and damned if I don't: I have explained to my fair
minded observers that if a claim is taken to a tribunal and the
claimant has not exhausted the employer's internal procedures that
the claimant will be deemed as 'contributing to their own dismissal.'
Even if the claimant wins, the compensation can be dramatically
reduced. If I had not progressed the grievance this 'Polkey'
reduction would have applied to me. To any fair minded person this
shows that I have been in a 'no win' situation. I have been
victimised for progressing a grievance but would have been deemed to
have contributed to or caused my own dismissal had I not continued
with the grievance process. In my witness statement I have described
the grievance process that I had to endure. My grievance was not
addressed and it was used as a forum to distress and intimidate me.
This is evidenced from the Respondent's own documents.
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