Appealing is futile

This is a precis of my experiences with the British Employment Tribunals. I still have all the documents to show that I am telling the truth in the following account:-

PLEASE TAKE A FEW MINUTES TO READ THIS:

The Basic Facts Mrs S Lawrence v West Sussex County Council Court of Appeal Ref: A2/2013/1819

Response to Employment Tribunal, Employment Appeal Tribunal and Court of Appeal decision:

Background:

1.1 In July 2008 I reported bullying in the workplace that was having a negative impact on the services provided and causing stress and illness of myself and some of my colleagues. I followed the advice of 'People Management' of West Sussex County Council and initiated a grievance to address this. I requested that the word 'bullying' should be avoided as it was very emotive. I used two specific examples. At this time I did not recognise that these were in fact disclosures of miscarriages of justice in the workplace. This was identified by two separate barristers who listed the disclosures I made under the PIDA Act.

The grievance procedure took from July 2008 to March 2009 to complete and was conducted very aggressively with 'People Management' openly supporting the managers in question. One day after the grievance concluded I was suspended on two unexplained allegations. I continued to ask for an explanation but nothing was forthcoming. In July 2009, about half way through the suspension period I was told that an investigation was taking place. In September 2009 I was questioned on these two allegations but was not given any details or explanation. I was assured that an explanation would be given after the investigation. In late November I was given a 'bundle' prepared by Mrs Wendy Hewitt of 'People Management'. In her report she had replaced the two allegations with six different ones. I was not questioned on these allegations so her report did not include my perspective. On the strength of this report I was dismissed on 10th December 2009. I fully explained in the disciplinary, the tribunal procedures and in my witness statement how this report does 'not stand up to scrutiny.' It clearly shows that the processes and investigation were not reasonable in all of the circumstances. Peculiarly the 'evidence' that this officer presents supports my case.

1.2 I requested that the Court of Appeal give me the opportunity to ask the Respondent these questions one more time. This time I requested that the responses be recorded.

1. What were the 'performance issues / concerns that the Respondent continually refers to? From June 2008 I have been asking and had no replies. At the last stage of the grievance in March 2009 I was criticised for asking this and for asking for the 'evidence.' Part of my grievance was being dismissed and there were recommendations to address these 'issues' as part of the outcomes. I asked my line managers, the Head of Service, all of the appointed officers involved in the grievance, and the member of 'People Management' appointed as the investigating officer. I asked Mrs Eileen Saunders who made the decision to dismiss me, both at the disciplinary and again in the Tribunal Hearing. Her repeated vague answers - ' I was satisfied that a fair process had taken place', 'it is all in the folder' in the hearing were accepted. There are no records of any performance concerns. I had received thanks from our service users, 100% positive feedback from the training I provided and thanks for assisting in the induction of new colleagues. All the targets set in my appraisals during the course of my employment had been achieved. This is all recorded in the Respondent's own documents.

Throughout the whole of my employment no 'issues or concerns' were ever specified From November 2008 to the end of the grievance in March 2009 I was meeting regularly with the Head of Service. There was ample opportunity to address any such issues, especially as these were later deemed serious enough for instant suspension and to take me to a disciplinary straight to dismissal level.

1.3

2. What were the alleged 'number of complaints' from our service users about and why was I not informed? The only letter I was ever made aware of was one from a nursery manager in which she starts by saying that I was a very nice person and she did not want the complaint to be formalised. She then requests that it should be kept confidential and that she had been persuaded to write only on the understanding and assurance that it would be used in a positive way to improve performance.

The only thing she specifies is that my colleagues gave her more useful advice than I had. This letter was written in July 2008, but was withheld from me. In August 2008 I was told that she had withdrawn the complaint. This is evidenced in an email message.

1.4 The supposedly 'impartial' officer who conducted the penultimate stage of the grievance used this 'complaint' to make his decision that I had 'performance issues.' He could not tell me what these 'issues' were. He referred me to my line managers and they could not either. In November 2008, when he presented his decision to me I still did not know about this letter. He had not included my perspective. It was not investigated.

I finally became aware of this letter when it was presented to me in a bundle for the last stage of the grievance in March 2009 when it was used against me. Ms Joanne Carpenter of 'People Management' produced this letter in a bundle she had prepared for the grievance and concluded in her closing statement that I had taken out three previous grievances (totally untrue), was 'impossible to manage' and 'should not be allowed to continue in employment.' She was conducting the grievance as a disciplinary.

Again the tribunal judge decreed that I had taken out grievances previously, despite all the evidence to the contrary. A grievance is a formal procedure and had to be documented.

1.5

I now wish to ask the judges:

Why wasn't it significant that the policies and procedures of the Respondent were not adhered to? They reflect the ACAS guidance, even using the same jargon and recommended 'fair' processes.

The recommendation from the county councillors on the board for the last stage of the grievance was that the above 'complaint' should be investigated and used to improve my performance. I agreed wholeheartedly. The chair of the board recorded how keen I was to know what 'better advice' my colleagues had given. I did not make a fuss over why this letter had been withheld from me for eight months and then used against me in a grievance procedure. All of my colleagues involved in the grievance are on record as agreeing with the outcome and we fully endorsed the recommendations. The grievance was partially upheld.

It was noted by the board that the letter of complaint did not give any details of why I had made myself unpopular with this particular service user.

The recommendation from the board to investigate this letter from the nursery manager was not followed. One day after the grievance was concluded I was suspended. The grievance was partially upheld, but when Mrs Saunders asserted in the tribunal that it was totally dismissed the tribunal took this as a fact, despite the clear documentary evidence that was before them.

Breach of contract:

It was confirmed to me by a Barrister I had paid privately that my contract of employment was a legal document. I confirmed that the policies formed part of my contract of employment. Non compliance with the contract constitutes a breach.

I was then informed by the barrister and lawyers who were supposed to be conducting my case that the rules had changed and that a breach of contract could not be addressed in an Employment Tribunal. They maintained that pointing out breaches would not strengthen my case for unfair dismissal. It was their opinion that it would show that I disagreed with management and that the judge would conclude that I was impossible to manage. My pleas that I was entitled to rely on my contract were summarily dismissed. These lawyers no doubt have seen how the majority of British Judges conduct the hearings. They told me that a contract 'is not worth the paper it is written on.'

At every point in the proceedings my ex employer flouted the policies. The time scales were not followed, I was not given any support, and the final outcome was ignored. I was not interviewed and nothing was explained. The confidential disclosure I made under the correct policy was not kept confidential, and was used against me in a disciplinary procedure. All of these breaches are documented in the correspondence and documents that I presented to the Tribunal.

I have now been told that I cannot take a case for Breach of Contract to another court because it has already been before a tribunal. This does not make sense to me because, as I have stated above, the lawyers who were supposed to be conducting my case told me that a tribunal claim could not include any breaches of contract.

To add to the confusion I have now been told by a barrister that the breaches have been 'before the tribunal.' He asserts that is was 'implicit in my claim' and therefore has been addressed. It did not need to be labelled.

In direct contradiction to this I have been informed that a judge will not consider a claim unless it has been labelled clearly. A few judges will make their decisions based on their discretion to apply the 'overriding interests of justice' but these are scarce. It was acknowledged by one judge that I did not understand why this duty was not applied to my case, but she did not explain why.

1.6 Why were the details of the allegations against me not considered by the Tribunal?

To give one example: The details of this situation:

My perspective was not considered. In the initial stages when the above mentioned 'complaint' had not been put in writing I was told by my line managers that I had 'probably criticised the practice.' I agreed that I had. I was in this nursery and asked the practitioner where the other two adults were, as the child/adult ratios laid down by regulations were not being complied with. She could not answer me. I reported this to my line manager and told her that I had to report this to the authorities (Ofsted). The line manager, Ms Caroline Doyle forbade me to do this. Her reasoning was that it would threaten the good relationships between us and the service user. I put it to her that the needs of the children should be paramount. I know that advisers in other counties do report such shortfalls. It is seen as part of our duty. Not wishing to go against her instructions, I decided to continue to monitor this and had hoped that my initial question to the practitioner would alert them to the need to follow this rule. If it persisted I intended to have to have further discussions with senior management. However, I was removed from this situation, and forbidden to talk to any of my colleagues.

I do not know if this is one of the examples that Judge Parker refers to in his 'reasons' in that I 'disagreed with what appeared to be reasonable management instructions' I do not know because he has recorded that he looked through the paper work on his own after the tribunal hearing and did not share the examples he claimed to have found.

1.7 I was concerned that the children were being put at risk at this nursery and took the correct action. Yet one of the first two allegations against me at dismissal level was that I 'potentially put children at risk of not having their needs met'. This was never explained to me. It was not repeated in the six different allegations that followed around nine months later. Judge Parker decreed that this initial allegation had not been dropped, claiming it was 'implicit' in these six new allegations. But no one has explained to me at any point how I ever 'potentially put children at risk of having their needs met', or if it was 'potential' why I was not warned and supported during the period from July 2008 to my suspension in March 2009. Judge Parker accepted this and resurrected it as an allegation but did not require the Respondent to explain how they had reached this conclusion. If it was deemed to be serious enough for instant suspension it should have been based on my actions in the last hours of my employment, not based on a vague letter received some eight months previously.

I did not receive any feedback from the tribunal about this fact. The timing of the suspension was glossed over as a 'mere coincidence.'

1.8 In addition, each time I have tried to put forward my perspective on this situation I have been stopped with the criticism that I was taking up too much time. I have not been given the opportunity to tell the whole truth as I see it. Every case is fact sensitive. In my experience and that of the lawyers that were supposed to be representing me the tribunal judges are not interested in facts, even when there is indisputable evidence.

1.9 My claim at the tribunal was dismissed on ' a piece of evidence encapsulated' by Mrs Saunders. The 'evidence' cited is merely her statement that 'there was a fundamental loss of customer confidence' in my ability. Over the previous five years I had over one hundred settings to visit at any one time, with a constant turnover. Judge Parker acknowledged that my colleagues had similar complaints, 'maybe more and certainly no fewer' than I had over this period. I put it to them that the expectation of 100% positive feedback was commendable but not realistic. I received 100% positive feedback for the training sessions I provided which was formally recorded on feedback sheets. I had built up very good relationships with our regular service users and received regular praise. In fact during the period just prior to the suspension I had been partially line managed by the head of service and she recorded in these two months that there had been positive feedback and gratitude from three separate service users. There were more that she had not recorded.

Judge Parker in his 'reasons' acknowledged this point on proportionality and comparison but dismissed it with the phrase 'nevertheless they were clients.' The fact that they were technically not clients is relevant. However the main flaw in his argument is that his reason for not accepting this as a strong point in my defence is that it would have to apply equally to my colleagues or, as I asserted at the hearing, I had been singled out and victimised for progressing a grievance. We were all working in a position where we were expected to give advice to improve. Most practitioners welcomed this advice as a challenge but a few resented it.

Why did the tribunal refuse to assess the fairness of the processes?

The Investigation Report for the disciplinary.

1.10 I was suspended for nine months with no further investigations into this situation. My perspective was not included in the Investigating Officer's Report. The Investigating Officer, Mrs Wendy Hewitt took random email messages from the communications between my self and my line managers and made up her own stories about them. She habitually selected one sentence and put it out of perspective, in one message she omitted praise and thanks from my line manager, extracting a quote from me asking 'had we made this decision?' claiming that I was disagreeing with a management decision. The next sentence in this message confirmed that I was keen to take the project forward and would welcome any support. The middle part was omitted but then this last comment that I would 'welcome support' was turned against me as Mrs Wendy Hewitt, in her report, decreed it meant that I was expecting 'someone else to do my job.' We were not entirely lone workers. We were a team. Of course she omitted my line managers ultimate response, which included thanks to me for 'taking actions' and 'taking this forward.' Every entry in her report follows this approach. For each point, if you read the whole message it supports my case. It is evident that I was co operating fully and that we were all working amicably together.

The reason given by Mrs Saunders in her decision to dismiss me was ' an irretrievable breakdown in our working relationship.' I was described as 'impossible to manage.' The members of People Management who asserted this made it very clear that it was the fact that I chose to take out a grievance that led them to this accusation. It is in writing. It is also recorded that there were no 'performance issues prior to the grievance,' but that these arose ' after the grievance had been initiated.'

The reason given by Mrs Saunders changed focus in the tribunal proceedings. The reason put forward was that there was a lack of client confidence based on 'a number of complaints.'

I do not know what these complaints were, who they were from and what I did. It has never been explained to me. There are no written records of any complaints being communicated to me or addressed.

In ET3 ( the response from WSCC to my tribunal claim) the 'complaint' I have described above was cited and one other that had been resolved. In the latter, I had been working with the service user satisfactorily for around three years before it was cited in the ET3. No other complaints were cited in the ET3. So these were the ones I addressed in my witness statement. Two more alleged complaints were introduced in the Tribunal Hearing, but I was not allowed to defend them. I asked to be given time to find the correspondence showing that they were not complaints, just misconceptions about our role that I had to explain. This was refused and they were classified as complaints by the Tribunal in the Judge Parker's 'reasons'.

1.11

3. Why weren't my previous exemplary records taken into account? These were documented and produced for the disciplinary and for the Tribunal Hearing. They spanned over four years, from my appointment up to the date which I took out a grievance. From that very day I was faced with unwarranted criticism and victimisation. This is all evidenced in the Respondents' own documents.

1.12

I was sacked because the investigating officer, Mrs Wendy Hewitt was victimising me for taking out a grievance and for making disclosures. It is in her report and in the allegations. She has even put clear criticism of me solely for taking out a grievance under a subtitle in her report. There was no breakdown at the point of suspension. It was caused by the long suspension and the aggressive disciplinary process. We were all awaiting the outcome of the grievance procedure to be put into action. We were relieved that it had finally been concluded and that we all agreed with the outcome. This is why one of the new six allegations in particular did not make sense to me. This had to be explained in the disciplinary hearing. In this allegation I was accused of attempting to prolong the grievance procedure by 'pursuing a grievance beyond the final stage of the grievance procedure.' I discovered in the disciplinary hearing that this was the Respondent's reaction to a confidential disclosure I made when I found myself suspended for nearly five months with no explanation. It is confirmed in the notes to the disciplinary produced by the Respondent. I was awaiting the recommendations from every stage of the grievance to be actioned. There is no part of the grievance policy which specifies that members of 'People Management' can overrule the decisions made at each stage and finally by the board of councillors. All the persons appointed to adjudicate were in agreement.

If you look at the facts it was 'People Management' who were prolonging the grievance by refusing to comply with the outcome.

The disclosure was not kept confidential and was used against me in the disciplinary. This allegation was upheld by the tribunal judges. It was re phrased as a 'complaint to the CX' and made me 'impossible to manage.' I suffered direct retribution for making a confidential disclosure, which led directly to my dismissal and then to the dismissal of my tribunal claim.

1.13

The grievance procedure took nine months to complete, when the policy states that it should be completed within weeks.

I was suspended for a further nine months before the disciplinary hearing was conducted. Judge Parker excused this saying that the investigation had been taking place throughout this time. The fact that it is documented that the investigation had not even been initiated until 25th July 2009 was totally ignored. I presented the Respondent's letter to the Tribunal which states this clearly, including an apology for the lack of action to that date. Judge Parker's other reason was that there were large a number of managers and clients to interview. As I have described above, the complaint that I was eventually aware of was not investigated. If it was I was not part of the investigation and nothing was in writing. The time taken was for Mrs Wendy Hewitt to trudge through my diary and emails to try to find something to incriminate me. She could not find anything so she made them up. I gave several examples of these fabrications in my witness statement, and through my questions in the Tribunal, but these were not taken into account. They were not one off oversights or reasonable misconceptions. The whole report, as I asserted in my witness report 'does not stand up to scrutiny.'

1.14

Any decision of the Employment Tribunal can be appealed at a higher level.

My Notice of Appeal to the Employment Appeal Tribunal can be read on my blog. Every point of law I put forward was well researched and backed by evidence and references to relevant caselaw. I did not receive feedback to any of these points. Disagreeing with a judge's decision on the basis that is is unfair constitutes an appeal based on perversity. Such an appeal is described as a 'high hurdle.' I have put forward that it is in fact a brick wall. A claimant firstly has to have their appeal accepted by a 'sift judge.' The sift judge reading my notice of appeal gave a very short refusal, stating that the Tribunal Judge's reasons were 'Meek compliant' This is referring to a previous case that confirms that in the reasons given, a judge is obliged to explain why he preferred the evidence of one side over another. This complies with a duty for 'transparency', basically meaning that a Claimant or Respondent is entitled to know why one party lost or won.

No one could see how Judge Parker had fulfilled this requirement. When I asked for an explanation the sift judge would not justify his decision stating that he was ' a sift judge only.' If the 'sift judge' will not or is not allowed to look at the details of the appeal how can it be fair?

From this I concluded that the oath that judges make to HRH Queen Elizabeth to 'do right by all manner of people' does not apply to sift judges.

It has been commented that 'Meek' compliance is a basic rule of natural justice which should not need to be

justified by referring to previous cases.

Lord Justice Underhill identified this problem in:

Council of the City of Newcastle Upon Tyne v Mr J Marsden, ( Appeal No. UKEAT/0393/09/CEA)

There is in this field as in others a tendency – often denounced but seemingly ineradicable - for broad statutory discretions to become gradually so encrusted with case-law that decisions are made by resort to phrases or labels drawn from the authorities rather than on a careful assessment of what justice requires in the particular case.

I can identify with this directly. I can show that in every decision I have been given, cases have been quoted but not applied to the facts of my case. The phrases and labels alone have been used.

It would seem that there has been no improvement since 2009.

At the short hearing I was allowed at the Employment Appeal Tribunal, Mr Recorder Luba in his written 'reasons' records that I requested an independent assessment of my claim. He then asserts in these 'reasons' his assurance that this would be forthcoming. In direct contradiction of this, all that follows is simply a list of the previous refusals I had, and the repetition of the euphemistic, sweeping statements of the tribunal judge. There is no explanation of why Mrs Saunders was considered to be 'a reliable and impressive witness.' I have been labelled as vexatious for continually asking for the evidence to substantiate her assertions. One of my observers at the Employment Appeal Hearing simply concluded that I was guilty simply 'because Mrs Saunders said so.'

Mr Luba followed the mantra often quoted by judges that they are 'not allowed to interfere with a previous judge's decision.' I have spoken to many people and they are all as dumbfounded as I am that it is not accepted by judges that this renders any attempt to appeal a decision futile. It was noted by one of my observers that Mr Luba referred to the other judges as his 'brethren.'

Appeal Judges also assert that they cannot re visit the evidence. They could not re visit any evidence put forward by the Respondent because they did not put any forward. No specific evidence was quoted in the Respondent's witness statements. The references to indisputable evidence that I cited in my witness statement were ignored. I was not questioned on my witness statement.

This was just one of the points I put forward as an appeal based on perversity.

The similar mantra that is used by tribunal judges is that 'it is not the role of the tribunal to replace their decision with that of the employer.' They assert that they are not permitted to disagree with the employer's decision. It is quoted in the reasons given to me by Judge Parker. In essence it renders all of the rest of the content of his 'reasons' a complete waste of time and resources. Again when I quote this from his reasons to any member of the public they ask me 'what is the point of going to a tribunal then?' This has been confirmed in a more recent case which was reported: 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.

More recently I was shocked to read a lawyer assert that the tribunal decision 'does not have to be fair to the claimant, it only has to be a decision that the employer could have made.' These together mean that the employer is always right and that fairness is not a factor to be considered by the tribunal. I am sure that this has strayed substantially from the original purpose of the tribunals. I have compiled a list of such mantras. I believe the mantra that the tribunal cannot interfere with the decision of the employer was taken from a case involving expert evidence and has been misapplied to cases that are vastly different. Some judges seem to have grasped this gleefully as it simplifies their role enormously.

1.15

The Court of Appeal

Following a refusal from the Employment Appeal Tribunal the next stage is to lodge a Notice of Appeal to the Court of Appeal.

It was my hope that I would be afforded an impartial assessment of my claim at this level. However the refusal from Judge Law was very brief. He simply stated that my claim could not succeed because he agreed with all of the reasons put forward by Mr Recorder Luba at the Employment Appeal Tribunal. Again, I had no right to have my perspective considered over the decision of the previous judges.

There is no right to a fair trial in the employment tribunal system.

The things I have been told by the lawyers involved are all true:

'The law and justice do not go hand in hand.'

This was the first statement from a solicitor, agreed by the barrister who was present.

This has been followed by :

'If you bang on about being bullied the judge won't like you, he will conclude that you are a whinger and would have been dismissed anyway'

'You can be dismissed for SOSR ( Some Other Substantial Reason) - a breakdown in trust and confidence, it does not matter if the employer caused the breakdown. They can cause the breakdown and then dismiss you for it.'

'If you win depends on the mood of the judge. The evidence won't make a difference, it can go either way.'

'If the judge has had a good weekend you might be lucky.'

'The judge will turn you down if you come over as a smart arse.'

'They won't like you if you take a high moral ground.'

'You won't get a judge to disagree with another judge.'

'Don't expect detailed reasons …....Southampton is the worst.'

'What makes you think that the law has anything to do with common sense?'

'It can go either way, you can have two virtually identical cases, one will win and one will lose.'

'They all stick together.' ( won't win an appeal)

'It's more about luck than justice.'

'Don't go muddying the waters with the truth.'

'You won't win against a County Council.'

'It's not about the truth, it is getting someone good to represent you. They can twist things and make them sound plausible.'

'We know you are telling the truth, but it doesn't work that way.' 'Your evidence won't make any difference.'

When I tried to discuss the breach of my contract the response was: 'they can..it won't make a difference. The judge won't like it if you continually refer to your rights. He will conclude that you were difficult and would have been dismissed anyway.'

'A contract is not worth the paper it is written on.'

'The judge will not be interested in the details of your case, he will only look at the point of dismissal and what was in the decision maker's mind at that time. We know it is not fair, but that's the way it is.'

'You can forget about Human Rights.'

About Litigants in Person on BBC Radio 4 with Help4LiPs :-

Comment by a law company Practice Lawyer

Everyone knows that the court system is not and has not been about Justice for a long time, it does not consist of an adversarial system, it does not matter if you know the rules as a litigant in person especially when you face a barrister or solicitor who the Judges have a higher regard for. It is completely bias, what is more Judges do not enforce the rules for self litigants when the errors are pointed out and they fail miserably to act with any type of integrity. Tax has consistently risen as has the numerous new rules and legislative obligations. Services are continuously cut  such as legal aid and the level of legal representation available these days is disastrous. Law and courts are operating a business reaping reward, benefit and fining the ordinary man in order to feed its continued greed. It is an intentional ploy which will ultimately lead to mass civil disobedience, its pretty much like dropping soldiers into Afghanistan or the like and stating we cannot afford to provide you weapons or ammunition. The law is a requirement for a fair and just society, we no longer have much law that is there to serve mankind, only law that is designed to serve and maintain MP's and the like having superior paid for lifestyles by the poorest in society in favour of corporations paying MP's to pass private bills. There is no complaint system that is actually fit for purpose and society would probably in this day and age be safer if the courts just closed their doors as they are only there to serve corporate greed. 

www.youtube.com/watch?v=Xbt8W-SVowE&feature=youtu.be 

..