Sunday, 17 February 2013
Point 30
Back to the complaint that was withheld from me:
At Point 30 of Judge Parker's reasons, with reference to the 'number of complaints' he states : 'Whether the numbers of settings involved were greater or smaller, these persons and bodies were clients of the respondent.' and that these 'had a significant impact upon the respondent.'
No 'significant' or detrimental impact was ever specified. I was the only one who considered a detrimental impact and looked at this from the perspective of the manager of the setting. My protest was that the one complaint that was in writing had not been investigated and that there had been no attempt to resolve it. The complaint was not specific, so there was nothing to be addressed. The client (service user) claimed that she had had better advice from my colleagues. It is in writing that I was 'itching to know' what this advice was and the recommendation from the grievance was that this should be 'explored.' I think anyone would agree that that would be fair.
I did not ever find out where I was deemed to be lacking because I was suspended shortly after being given this information. It is important to read this letter of complaint. It starts by saying that she had only written because she was assured that it would be used in a positive way to improve the service, and that it was not a formal complaint. It seems clear that someone was urging her to write a complaint. In addition she asked for confidentiality. I am the only one who has respected this and I have not named the person.
My perspective was not considered by my ex employers or by the tribunal. In my witness statement I have sympathised with the manager and acknowledged that this had left us both in a difficult situation. It was not a fair solution to dismiss me. I have made these points clear, and cited the evidence in points 39, 40 and 60 of my witness statement. This evidence has not been considered in the judgment. The only 'siginificant' detrimental impact was in leaving this unresolved.
It is perverse that Judge Parker has chosen to escalate this complaint to such a serious allegation by repeating the Respondent's unsubstantiated claims that 'settings were saying they had lost confidence' in me. This was the only one recorded. He states that 'these were having a detrimental impact on the respondent.' There is no evidence that any other settings made such complaints, and this one had not been investigated. How do we know that there was not a complete misunderstanding? - or that she did not like the colour of my hair?
Why wasn't the 100% positive feedback I had from training and conferences taken into account, the 99% + positive feedback from all of my other visits? The positive feedback that Mrs Barton recorded in her notes in the three months she was acting as my line manager? This is all in my witness statement and the evidence is in the bundle presented to the tribunal.
I do not believe that a reasonably minded observer would see this as a fair, balanced judgment.
I have now read that it is also a 'point of law' if evidence is disregarded, but the judge refusing my appeal has not responded to this. I have had another blank refusal - no reasons given. As my astonished observers have concluded 'because he can.' That is not giving the transparency that anyone is entitled to. If these are not 'points of law' or examples of a perverse decision we have a right to have this explained. Justice should not just be done, but must be seen to be done. If a judge is going to make these decisions he has an explanatory duty.
Thank you for taking the time to read this.
It seems that my main problem is that I keep forgetting that I am a pleb and should accept being downtrodden.
At Point 30 of Judge Parker's reasons, with reference to the 'number of complaints' he states : 'Whether the numbers of settings involved were greater or smaller, these persons and bodies were clients of the respondent.' and that these 'had a significant impact upon the respondent.'
No 'significant' or detrimental impact was ever specified. I was the only one who considered a detrimental impact and looked at this from the perspective of the manager of the setting. My protest was that the one complaint that was in writing had not been investigated and that there had been no attempt to resolve it. The complaint was not specific, so there was nothing to be addressed. The client (service user) claimed that she had had better advice from my colleagues. It is in writing that I was 'itching to know' what this advice was and the recommendation from the grievance was that this should be 'explored.' I think anyone would agree that that would be fair.
I did not ever find out where I was deemed to be lacking because I was suspended shortly after being given this information. It is important to read this letter of complaint. It starts by saying that she had only written because she was assured that it would be used in a positive way to improve the service, and that it was not a formal complaint. It seems clear that someone was urging her to write a complaint. In addition she asked for confidentiality. I am the only one who has respected this and I have not named the person.
My perspective was not considered by my ex employers or by the tribunal. In my witness statement I have sympathised with the manager and acknowledged that this had left us both in a difficult situation. It was not a fair solution to dismiss me. I have made these points clear, and cited the evidence in points 39, 40 and 60 of my witness statement. This evidence has not been considered in the judgment. The only 'siginificant' detrimental impact was in leaving this unresolved.
It is perverse that Judge Parker has chosen to escalate this complaint to such a serious allegation by repeating the Respondent's unsubstantiated claims that 'settings were saying they had lost confidence' in me. This was the only one recorded. He states that 'these were having a detrimental impact on the respondent.' There is no evidence that any other settings made such complaints, and this one had not been investigated. How do we know that there was not a complete misunderstanding? - or that she did not like the colour of my hair?
Why wasn't the 100% positive feedback I had from training and conferences taken into account, the 99% + positive feedback from all of my other visits? The positive feedback that Mrs Barton recorded in her notes in the three months she was acting as my line manager? This is all in my witness statement and the evidence is in the bundle presented to the tribunal.
I do not believe that a reasonably minded observer would see this as a fair, balanced judgment.
I have now read that it is also a 'point of law' if evidence is disregarded, but the judge refusing my appeal has not responded to this. I have had another blank refusal - no reasons given. As my astonished observers have concluded 'because he can.' That is not giving the transparency that anyone is entitled to. If these are not 'points of law' or examples of a perverse decision we have a right to have this explained. Justice should not just be done, but must be seen to be done. If a judge is going to make these decisions he has an explanatory duty.
Thank you for taking the time to read this.
It seems that my main problem is that I keep forgetting that I am a pleb and should accept being downtrodden.
Read this - you will not believe it!
You cannot please all of the people all of the time.
I asked the Respondent's witness, Mrs Saunders if, while it was commendable to have a 100% positive feedback from clients or service users, whether it was realistic. She replied , ' I don't understand the question,' then when I tried to explain it further, ' Do I have to answer that question?' and then I believe she said, 'I am not qualified to answer that question.'
During the hearing and in the judgment my detailed written evidence was not considered but the Tribunal has accepted the bland accusations and blanket statements of the Respondent as 'evidence.'
As one example, in the Tribunal Hearing I asked Mrs Saunders, the Respondent's witness about her statement in which she claims that there were 'a number of complaints.' I asked her to specify the number and what the complaints were. She was allowed to answer, ' they are in the folder/ report.' In my witness statement I responded to the two detailed in the ET3, one of which had been resolved nearly two years before the disciplinary was launched, and the other which had been withheld from me until shortly before I was excluded pending a disciplinary hearing. In July 2008 I had been told that the latter complaint had been withdrawn but it was resurrected in March 2009 as part of a bundle produced by 'People Management' for the final stage of the grievance. This had not been investigated and there were no attempts to resolve it.
During the hearing the witness then mentioned two other settings which had not been previously specified. I was not prepared for these. In the hearing Judge Parker accepted these as 'complaints'. In the Investigation Report for the disciplinary there are several paragraphs with Mrs Hewitt's interpretation of these and one short sentence citing an email message to one of the clients and my claim confirming that it had been resolved. It had. The client was of the impression that our role was to interact with the child. She had also been told that we had a specialist on behaviour management, which was untrue. A lot of our 'complaints' were based on a misconception of our role. I explained this to the manager and she accepted it. There is a record in the 'bundle' of an email from my line manager thanking me for resolving this.
Yet it has been used to sack me and to dismiss my claim in the Tribunal.
In my witness report I have indicated that I had suspicions that one of my colleagues was implicit in initiating these 'requests for another visitor.' It is reported at Point 58 of my statement - 'I asked MB to investigate two further requests for another visitor, which seemed to follow after my line manager SH had paid a visit.' This is another example of the Tribunal accepting the statements in the Investigation Report as being reliable evidence, when they clearly are not. Mrs Hewitt, the person responsible for writing the Investigation Report for the disciplinary did not include my perspective. To any reasonable person it would indicate that this was in retribution for my grievance. The WSCC policy specifically states that employees taking out a grievance will be protected from retribution.
In some of the examples Mrs Hewitt gave in her report, she had not even asked me. In other examples she made scant reference to my perspective and dismissed it with no reasons given apart from the blanket statements that the report largely consists of. In this case she wrote that I refused to accept 'culpability' for the 'complaints.' They were not specific complaints about me. Each person had requested an alternative visitor. I had not even been working directly with these people. I did nothing wrong.
I believed that in the Tribunal Hearing my submission on 'proportionality' was a strong point and did not expect Judge Parker to include these two further settings in the number which he describes in his 'reasons' as 'large.' I put it to him in the Hearing that even if they were included it made the number three out of a possible 150 to 200 settings that I had visited over the five previous years. When I explained our brief, every client accepted this and was happy to continue working with me. This is on record.
I can't imagine that these clients would be happy that they were implicated in my dismissal and the dismissal of my claim.
I asked the Respondent's witness, Mrs Saunders if, while it was commendable to have a 100% positive feedback from clients or service users, whether it was realistic. She replied , ' I don't understand the question,' then when I tried to explain it further, ' Do I have to answer that question?' and then I believe she said, 'I am not qualified to answer that question.'
During the hearing and in the judgment my detailed written evidence was not considered but the Tribunal has accepted the bland accusations and blanket statements of the Respondent as 'evidence.'
As one example, in the Tribunal Hearing I asked Mrs Saunders, the Respondent's witness about her statement in which she claims that there were 'a number of complaints.' I asked her to specify the number and what the complaints were. She was allowed to answer, ' they are in the folder/ report.' In my witness statement I responded to the two detailed in the ET3, one of which had been resolved nearly two years before the disciplinary was launched, and the other which had been withheld from me until shortly before I was excluded pending a disciplinary hearing. In July 2008 I had been told that the latter complaint had been withdrawn but it was resurrected in March 2009 as part of a bundle produced by 'People Management' for the final stage of the grievance. This had not been investigated and there were no attempts to resolve it.
During the hearing the witness then mentioned two other settings which had not been previously specified. I was not prepared for these. In the hearing Judge Parker accepted these as 'complaints'. In the Investigation Report for the disciplinary there are several paragraphs with Mrs Hewitt's interpretation of these and one short sentence citing an email message to one of the clients and my claim confirming that it had been resolved. It had. The client was of the impression that our role was to interact with the child. She had also been told that we had a specialist on behaviour management, which was untrue. A lot of our 'complaints' were based on a misconception of our role. I explained this to the manager and she accepted it. There is a record in the 'bundle' of an email from my line manager thanking me for resolving this.
Yet it has been used to sack me and to dismiss my claim in the Tribunal.
In my witness report I have indicated that I had suspicions that one of my colleagues was implicit in initiating these 'requests for another visitor.' It is reported at Point 58 of my statement - 'I asked MB to investigate two further requests for another visitor, which seemed to follow after my line manager SH had paid a visit.' This is another example of the Tribunal accepting the statements in the Investigation Report as being reliable evidence, when they clearly are not. Mrs Hewitt, the person responsible for writing the Investigation Report for the disciplinary did not include my perspective. To any reasonable person it would indicate that this was in retribution for my grievance. The WSCC policy specifically states that employees taking out a grievance will be protected from retribution.
In some of the examples Mrs Hewitt gave in her report, she had not even asked me. In other examples she made scant reference to my perspective and dismissed it with no reasons given apart from the blanket statements that the report largely consists of. In this case she wrote that I refused to accept 'culpability' for the 'complaints.' They were not specific complaints about me. Each person had requested an alternative visitor. I had not even been working directly with these people. I did nothing wrong.
I believed that in the Tribunal Hearing my submission on 'proportionality' was a strong point and did not expect Judge Parker to include these two further settings in the number which he describes in his 'reasons' as 'large.' I put it to him in the Hearing that even if they were included it made the number three out of a possible 150 to 200 settings that I had visited over the five previous years. When I explained our brief, every client accepted this and was happy to continue working with me. This is on record.
I can't imagine that these clients would be happy that they were implicated in my dismissal and the dismissal of my claim.
How ridiculous is this?
One of the 'reasons' given by the judge when dismissing my claim was that it was not the role of the tribunal to replace their decision with that of the employer. When I relate this to any fair minded member of the public their reaction is, 'Then what is the point of going to a tribunal?'
To illustrate my point further please consider the following report on a recent case:
Range of Responses Test
[Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary]
In an unfair dismissal case, is it for the tribunal to decide whether or not the dismissal was fair?
No, says the EAT in Bryant v Sage Care Homes Ltd.
Ms Bryant, a nurse with a long and unblemished record, worked at the Respondent's nursing home. She instructed a care assistant to administer a drug to a patient. The care assistant gave the drug to the wrong patient, and Ms Bryant learned of the error shortly after.
Ms Bryant was dismissed for failing to record or report the error. The tribunal held that dismissal was within the range of reasonable responses. The EAT held that although any reader of the tribunal judgment might think that Ms Bryant had been harshly treated, the decision was not perverse.
There is nothing new or startling in this judgment. But those who persist in thinking the 'range of reasonable responses' test an impermissible gloss on the language of section 98 may derive some wry amusement from a judgment of which the judge's own summary puts the point this baldly: 'It was not the task of the employment tribunal or the EAT to decide whether the dismissal was fair.'
My comment:- It is my opinion that any 'fair minded' person's reaction would not be 'wry amusement' but rather one of shock and horror. When putting in a claim for unfair dismissal, the expectation is, and should be that the tribunal will make such a decision. There seem to be a growing number of mantras used by judges which denies this role. Another which is commonly quoted in many cases is ' the tribunal must not replace their decision with that of the employer.' In the reasons given to me, after a long tirade the judge finally adds this mantra. To me this negates the need for any of the preceding pages. If there is no such thing as 'unfair dismissal' in the eyes of the tribunal why isn't it in the rules? I cannot see how that equates with the pledge to 'do right by all manner of people.' If the judges work on these principles the employer only has to put forward a token resistance and they cannot lose. If it is deemed that the employer is always right, any tribunal hearing is a complete waste of time and resources.
My story in brief - abuse of power
On my own I am
powerless:
Washing
one's hands of the conflict between the powerful and the powerless
means to side with the powerful, not to be neutral.
Paulo Freire
Paulo Freire
About me and my blog
In 1974 I achieved my childhood
ambition and became a teacher in UK schools. Since then I have had a
number of roles, in the latter years specialising in early years and
children with additional support needs. I have positive records and
references from all of my posts. I produced these for the Tribunal
Hearing.
In April 2004 I was appointed an an
advisory teacher for West Sussex County Council ( WSCC). From that
date until March 2009 my 'Individual Development Records' were
positive and I had good feedback from managers and our service users.
This turned from the point that I
reported bullying in the workplace. I requested that the word
'bullying' was not repeated as I knew it would be emotive and make
conciliation more difficult.
I tried to resolve this informally but
was not given any support, so I followed the advice given to me and
initiated a grievance, in accordance with the WSCC policy which was
part of my contract of employment.
The basic facts are:
The grievance procedure took nine
months, and throughout that time the bullying escalated to include
'People Management.' I have a record of the incidences, which I
reported to People Management and ultimately to the correct
'reporting officer' appointed to listen to my concerns under the WSCC
'confidential reporting policy.' My disclosure to this officer was
not kept confidential, and some four months later it was used in an
allegation against me at dismissal level.
Even if the officer believed I had no
cause, I had the right to have it acknowledged, kept confidential and
investigated, not turned against me and used to dismiss me.
I was summarily suspended one day
after the grievance procedure was completed. The recommendation from
the councillors at the final stage was for 'mediation from qualified
personnel' as soon as practicable. There is a record of myself and
the managers involved in the grievance asking for mediation,
throughout the process and in the final grievance hearing. This was
ignored, making a sham of the whole grievance procedure. This was
just one of the points I brought to the attention of the reporting
officer.
I was suspended from March 2009 to my
dismissal on 10th December 2009. I continued asking for details of
the two initial vague allegations, but was not given a response,
apart from ' you will be supported on your return to work.'
The next shock was in May 2009. I was
offered a compromise agreement to leave, with a threat that I 'may be
dismissed.' I have been told by lawyers to 'leave my feelings out of
it', but I felt like I had been punched in the stomach. I still did
not know what I was supposed to have done wrong to warrant dismissal.
This was closely followed by an offer of redundancy, even though we
were still recruiting in my department.
The evidence I produced to defend the
allegations was ignored. I have explained in my witness statement for
the tribunal hearing that the evidence collated by the investigating
officer does not support her accusations. In fact it is quite the
opposite, they show that I was innocent. The intention was to dismiss
me, and the reason was that I had taken out grievances, which were
essentially disclosures about bullying and then made a confidential
disclosure under the WSCC 'whistle blowing' policy.
I believe that any reasonable person
would agree with me that the disciplinary, to put it in simple terms,
was a kangaroo court. Again the WSCC policy was not followed.
This abuse of power has continued
through to the tribunal procedures. No reasons have been given for
the decisions, just blank denials and unsubstantiated accusations.
The evidence I presented was not acknowledged. My witness statement
was ignored. The latest accusation is that I am being vexatious,
simply for appealing a decision. No other reason has been given.
In the final tribunal hearing the
respondent and the judge referred to minor misunderstandings with our
service users that had been resolved years previously. These were all
regarding misapprehensions about my brief. I found myself defending
'requests for an alternative visitor' which the Judge would only
allow me to describe as 'complaints.' There are no records of such
complaints. Within the folders of evidence produced for the tribunal
hearing, there are records of these issues being resolved, including
thanks from my line managers for doing so. The judge told me that it
was not necessary for me to find these.
My identity, my vocation and my
livelihood have been taken away from me. I did nothing wrong. I am
now virtually unemployable.
There are strict time limits on
Tribunal procedures but there are no time limits for telling my
story. I am telling the truth and have documentation to back up all
of the facts I will present. I am asserting my right to freedom of
speech and will not insult or lie about anyone.
QUOTES:
My hope:
“There is a power that can be created
out of pent-up indignation, courage, and the inspiration of a common
cause, and that if enough people put their minds and bodies into that
cause, they can win. It is a phenomenon recorded again and against in
the history of popular movements against injustice all over the
world.”
― Howard Zinn, You Can't Be Neutral on a Moving Train: A Personal History of Our Times
― Howard Zinn, You Can't Be Neutral on a Moving Train: A Personal History of Our Times
I have been told constantly that I
will fail:
The probability that we may fail in the
struggle ought not to deter us from the support of a cause we believe
to be just.
Abraham Lincoln
“I
don't know about you, but I only have one life, and I don't want to
spend it in a sewer of injustice.”
― Wallace Shawn
― Wallace Shawn
― William Faulkner, Intruder in the Dust
Unfair dismissal
Please read my story about bullying in the workplace and unfair
dismissal. I want to describe my experiences with my ex employer, West
Sussex County Council and the subsequent tribunal processes. At every
stage my complaints have been summarily dismissed. This to any fair
minded observer constitutes a blatant abuse of power. I know because I
have consulted such people. Those who are involved in law accept this,
and by doing so condone it. People not involved in law who are not
familiar with this kind of oppression are shocked and angry.
I have also faced apathy -' life is not fair'. Some things in life are not fair and no one can change them. But some things can and should be changed. I would like to hear from anyone who has had similar experiences. At the very least we can be angry together.
I have also faced apathy -' life is not fair'. Some things in life are not fair and no one can change them. But some things can and should be changed. I would like to hear from anyone who has had similar experiences. At the very least we can be angry together.
Read my story...
I want to share my experiences in
the British Employment Tribunal. I have had a long journey.
I was not given a fair trial. I have
read that Article 6 does not allow a judge to 'exclude evidence that
has substantive probative value.' The judges ignored my evidence,
which is clearly documented. I have been accused of being vexatious,
just for appealing a decision. No other reason has been given.
I
need to make a public disclosure to some fair minded, reasonably
informed members of the public.
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