Tribunals and Tribulations: Point 2... dismissed for lots of little things? or...

Tribunals and Tribulations: Point 2... dismissed for lots of little things? or...: Which leads me to the second point: 2.1 The reason for the dismissal was given as 'Some Other Substantial Reason'. This has...

Point 2... dismissed for lots of little things? or for making disclosures? THAT is the question!

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.

Section 47B provides, so far as is material:

"(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. 

WANTED: fair minded citizens to read my appeal

In this Fresh Notice of Appeal I am selecting seven main points that were made in the reasons given for the dismissal of my claim that do not make sense. There are more. The reasons that were submitted by Judge Parker contain numerous inaccuracies that I can disprove with evidence from the Respondent's own documents.

This means that my case is arguable.

I have shared the reasons with many fair minded and reasonably informed citizens and the overriding impression is that these reasons are hopelessly wide and vague. We do not understand why I was turned down. In particular my witness statement and my closing submission has been totally overlooked. The indisputable evidence that I presented has not been acknowledged.

There are blanket agreements with the Respondent's blank denials. There is no reason given why the Tribunal chose to assert that one of the Respondent's witnesses was reliable and that my evidence was not. To comply with the precedent set out in Meek v City of Birmingham District Council [1987] IRLR 250, CA. 16. we are entitled to know what relevant considerations were made in reaching this decision and in the decision as a whole. I am respectfully requesting that this basic point of law is explained. If there is no explanation the judgment should be vitiated and my claim should be remitted to a new tribunal.

I am respectfully requesting that I am given explanations of the following seven points: Under Rule 3(7b) it is stated that the appeal judge or registrar will inform me of the 'reasons for his opinion.' Merely stating that there are no points of law or perversity is an opinion or a conclusion. There is no reasoning involved when summarily agreeing with the Tribunal decision. I will explain below that the Tribunal summarily agreed with the Respondent's decision. My perspective was not considered. The case that I referred to in my closing statement was not responded to: Haddon v den Bergh Foods Ltd (1999) IRLR 672 EAT - 'The tribunal also forgot to consider the case from the employee's perspective, as is required by the reference to “equity” in s 98(4) of the Employment Rights Act 1996.'

If a precedent is quoted I am entitled to know how the case applies to my circumstances. To my mind and to that of each of my readers we cannot see how the judge's reasons are 'Meek compliant.' ( that the reasons given for the judgment are adequate) Simply naming a precedent does not explain how it is relevant. If this is not explained there is no transparency. The explanatory duty of judges is not being complied with. The growing band of fair minded observers of my case cannot understand why the evidence has been overlooked. The true test is that I cannot explain to anyone why my amendment and my claim have been dismissed.

Point One

1.1 Background facts: I was suspended one day after the employer's grievance procedure was completed. My grievance was partially upheld and we had all requested and agreed to mediation. I was suspended pending a disciplinary on two allegations. One of these was that I 'potentially put children at risk of not having their needs met.' I was shocked and distressed and asked for an explanation of this accusation. None was forthcoming. In the event this allegation was not pursued. Some six months later into the suspension, I was interviewed on these two allegations and still no explanation was given. When I asked what I had done to warrant the suspension and a disciplinary investigation, I was told it was ' lots of little things.' The Investigating Officer, Mrs Hewitt of 'People Management' would not or could not tell me how I had potentially put children at risk of not having their needs met. Six different allegations were eventually put forward to replace the two. These were first made known to me in the bundle for the disciplinary hearing around eight months after I had been suspended. Again there was no explanation and the investigation report did not contain my perspective. It could not include my perspective. I had not been interviewed on these allegations and had not submitted a witness statement. It is claimed that this report was impartial. I had asked for guidance on the disciplinary procedure, but none was forthcoming. This does not constitute a 'reasonable response' or a 'reasonable process' as set out in the precedent set by British Home Stores v Burchell, BAILII case number: [1978] UKEAT 108_78_2007. The Respondent submitted this precedent to dismiss my claim without any explanation and at Point 19 of the reasons the Tribunal gives a blank agreement. Neither the respondent or the tribunal have given the relevant considerations made in coming to this opinion.

1.2 In the reasons given by Judge Parker he asserts that the six allegations were exemplars and expansions of the original two. I cannot see how anyone can agree with this. In the main they are still vague and euphemistic and the details that were added did not correlate with the evidence that was put forward to support them.

1.3 Any reasonably minded person would consider that the accusation of 'potentially putting a child at risk of not having their needs met' warranting instant suspension with no warnings must be serious and clear cut. And yet the Respondent and the Tribunal did not or indeed cannot specify what I had done to warrant this accusation. In the reasons given to dismiss my claim this has now been incorporated into the six allegations that followed. It has been reinstated. Therefore I have a right to know the details. I am entitled to know who made this allegation, on what grounds, why it was dropped and then reinstated by the Tribunal.

Every finding for which there is no evidence is perverse.

1.4 As there is no evidence or grounds for this allegation, my contention stands: that it was put before me entirely to intimidate, distress and harass me. It was direct retribution and victimisation for pursuing a grievance. The records of positive feedback that I had received was documented and included in the bundle but were not considered. These spanned nearly five years, from the day I was appointed. My personnel records are all positive and I was thanked for mentoring new staff.

1.5 I asked the Respondent's witnesses in the Tribunal Hearing why I had not been told what my perceived shortfalls were and why I was not afforded the 'stepped approach' specified in the Respondent's disciplinary policy and procedures. In particular if the risk was 'potential' why wasn't I alerted to it and given the opportunity to put it right? I was not given an answer.

Again this does not constitute a 'reasonable process'. Any fair minded person would agree that an accused person has the right to know what they have been accused of and why.

1.6 This applies to all of the allegations. I quoted from the Respondent's policy which was part of my contract of employment and mirrors the ACAS guidance. It specifies that the process should be supportive and not used as a punishment. The only responses I had from Mrs Saunders, the Respondent's witness were blank denials. She continually repeated that she was 'satisfied that a fair process took place' but she could not justify this. When questioned she also continually repeated, 'I am entitled to rely on the evidence that was before me.' There was no evidence. When I asked her to elaborate and cite the evidence she gave the same reply, once saying 'they are all in the paperwork.' Judge Parker curtailed my questioning saying that she had 'answered my question.' She had not. Please read my witness statement for examples of the evidence in the investigation report that do not stand up to scrutiny. In fact it is quite the opposite. It is quite peculiar that the documents quoted show that I was innocent. I gave more 'samples of these acts complained of ' in the Tribunal Hearing in my questions. All of the examples I gave have been overlooked. I invited the tribunal members to question me on any accusations in the report prepared for the disciplinary. I was not questioned on my witness statement, the allegations or on the additional accusations that were added in the Hearing.

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.

1.7 This is the only allegation that could possibly have been serious enough to warrant suspension and dismissal, and yet the Respondent cannot give any details. The six allegations that followed eight months later were not of a serious nature. It has been admitted by the Respondent and was repeated by the Judge that I was suspended and dismissed 'for lots of little things.'