Immigrant taking me to a tribunal

[Happyeater]

We've had an immigrant working for us for two years and dismissed him after he refused to take part in a disciplinary meeting and then appealed and walked out of that after 20 mins refusing to answer q's.

He was being disciplined for a variety of issues including falsification of paperwork.

Now we've had a tribunal letter (instigated by a solicitor) and have to go to a tribunal to explain if we've followed procedure properly. The strange thing is, the immigrant stopped speaking English just before the first disciplinary meeting and may argue he didn't understand what was going on, despite him speaking decent English for the years previous. He didn't ask for an interpreter for the meetings but, as mentioned, may play the 'no speak English' card.

Anyone had anything similar? I'm wondering what course to take with this.

We do have his filled in Application, H&S sheets etc all written in English and have witnesses to say his English used to be fine.

 

[KidsBeeHappy]

Do you have cover for employment tribunals? Are you a member of the FSB?

 

[Eagle]

The strange thing is, the immigrant stopped speaking English just before the first disciplinary meeting...

How typical... I wish you well.

 

[Happyeater]

Do you have cover for employment tribunals? Are you a member of the FSB?

I am a member of the FSB but they can't help on this. Its a little complicated to be fair.

 

[davidakerr]

Can I suggest the reason why the FSB cannot help is that you took the decision to dismiss the person before consulting with the FSB Legal people. FSB works, and will help if you consult them prior to making a decision. There would, on the surface, be no other reason for them not to advise and help you.

 

[Dawg]

Can I suggest the reason why the FSB cannot help is that you took the decision to dismiss the person before consulting with the FSB Legal people. FSB works, and will help if you consult them prior to making a decision. There would, on the surface, be no other reason for them not to advise and help you.

Exactly the sort of reason why FSB, chocolate and teapot seem to live together. This sort of bureaucratic "you did it in the wrong order" rationale is unfortunately common in pettifogging local government, but it's appearance in an organisation for business is beyond belief. Are we really meant to consult a trade body prior to making executive decisions in our businesses? Why not just outsource the whole business to them and live in penury?

 

[Happyeater]

David, I did contact the FSB before taking any action, in fact I used their paperwork to invite this immigrant to the meetings etc.

 

[davidakerr]

Happyeater, would you like to PM me with the details and give me the date you contacted the FSB together with your FSB membership number. I may be able to help here.

posted by Dawg
....."you did it in the wrong order"

Are you suggesting that businesses ignore the law and dismiss people indiscriminately when they feel like it? The whole purpose of taking legal advice before taking action against an employee is to ensure the process is fair. If the employer follows the guidelines set out in the Employment Rights Act 1996 then there shouldn't be a problem, but many thousands of small businesses are unaware of the process, thats why taking legal advise prior to taking action is advisable.

 

[Shaun_Pearce]

I wish you well this this case...

For future reference I provide online ID verification that will pick up on these problems before they start.

Let me know if you would like to see it for future reference. Call me or PM me a number.

All the very best with your case.

Shaun

 

[fathippy]

i would have to concur slightly with dawg's sentiment. I am an FSB member, and find it generally helpful, however their legal helpline, which i believe is outsourced entirely, I find very officious and condescending. Whilst I appreciate the need to be clear about the legal procedure, I get the feeling they are very anti-business, and pro-government. Maybe this is unavoidable due to how mucked up the current laws are, and I apologise to them if they are "just doing their job", but surely if they are working for the federation for small businesses, they should at least give the impression they are on our side, and not that they are a government body.

 

[Mister B]

How typical... I wish you well.

Call me old fashioned but I couldn't agree more.

It's all very well being "fair" but the more that we see immigrants acting in this manner, the more they will get themselves a bad name. The more they get themselves a bad name, the more resentment is built up within the UK.

Apologies if nobody likes my opinions but I stand by them.

Mister B

 

[Dawg]

Happyeater, would you like to PM me with the details and give me the date you contacted the FSB together with your FSB membership number. I may be able to help here.

posted by Dawg
....."you did it in the wrong order"

Are you suggesting that businesses ignore the law and dismiss people indiscriminately when they feel like it? The whole purpose of taking legal advice before taking action against an employee is to ensure the process is fair. If the employer follows the guidelines set out in the Employment Rights Act 1996 then there shouldn't be a problem, but many thousands of small businesses are unaware of the process, thats why taking legal advise prior to taking action is advisable.

Yes of course I'm suggesting that. (Note to ed: how many 'g's in fuggingmoron?) And in fact I think removing the femurs from all lawyers and using them to beat sh1t out of punctilious and pompous little squits would be of great benefit to mankind.
I have , O so bleedin' natch, taken extensive legal advice before even waking up this morning, as to whether heavy handed sarcasm would be wasted on the man on the Clapham omnibus, who (unfortunately?) has had his irony gland removed. Is this reasonable, (a term which might have more legal resonance than 'fair')?
Gawd help the FSB if this is their (nasal accent)picky-picky(/nasal accent) MO.

 

[sjbeale]

To have a good chance at winning at tribunal you must have written paperwork to prove your actions and that you followed a fair procedure. If you don't have this you will more than likely lose at tribunal.

With a dismissal you must first invite the employee to a meeting to discuss with issue, give them adequate time to respond, provide a decision, confirmed in writing and give them the right to appeal against the decision. If you did not do this you will probably lose at tribunal.

With the pre-tribunal process there is a chance to try and mediate through ACAS to try and stop it going to court. You could consider this. Alternatively you could agree to settle privately before the tribunal date if you feel you may lose due to the lack of paperwork.

 

[davidakerr]

.........." taken extensive legal advice before even waking up this morning"

You wasted what brain you still have left.I thought the idea was to try and be helpful to other posters, not extol vitriol whilst your mouth was full of Dawgs s...t

 

[IainW]

Call me old fashioned but I couldn't agree more.

It's all very well being "fair" but the more that we see immigrants acting in this manner, the more they will get themselves a bad name. The more they get themselves a bad name, the more resentment is built up within the UK.

Apologies if nobody likes my opinions but I stand by them.

Mister B

I think your opinions are fine and they are my sentiments also. I think we all feel a lot more then we are letting on.

 

[Dawg]

Yes you are right. I was trying to say to the OP, as well as to others here, that the attitude of the FSB is/was typically dissapointing, and thus not to rely upon it at all.
You extrapolated this into my wanting to ignore the law. This is patent rubbish, and I treated it as such. The attitude that I took of considering the FSB as being institutionally unfit to mount a decent legal case in no way displayed any disregard for the law, merely a healthy disdain for certain of its practitioners, and their supporters. By conflating this disdain with disregard you show a thought process which I mocked, in a self admittedly heavy handed manner.
If this is "dawg s...t" to you, all well and good. The punctillious, the pompous and the prat stand.

 

[Happyeater]

To have a good chance at winning at tribunal you must have written paperwork to prove your actions and that you followed a fair procedure. If you don't have this you will more than likely lose at tribunal.

With a dismissal you must first invite the employee to a meeting to discuss with issue, give them adequate time to respond, provide a decision, confirmed in writing and give them the right to appeal against the decision. If you did not do this you will probably lose at tribunal.

With the pre-tribunal process there is a chance to try and mediate through ACAS to try and stop it going to court. You could consider this. Alternatively you could agree to settle privately before the tribunal date if you feel you may lose due to the lack of paperwork.

The paperwork is complete (as far as possible) apart from meeting minutes which the immigrant refused to take part in. Apart from that the invitation to the disciplinary and appeal are in place, the decisions with right of appeal, an opportunity for them to bring a witness etc, witness statements, copies of incomplete and inaccurate sign in book, completed application, H&S sign off and training record sheets all complete. I also have copies of letters sent etc too. After what this person did there's no way I'd pay them off.

 

[Mat_D]

I think your opinions are fine and they are my sentiments also. I think we all feel a lot more then we are letting on.

It's nice to see people speaking their minds in here for once

I think employer/eployee law needs re-writing completely. I know of employers who have been ruined by an employee seeing an opportunity to screw them and doing it. I've also seen employees screwed over by their employers and left with nothing.

I'm sure the FSB can help in some way. I used their legal services a few months ago and they were helpful.

 

[Lime One]

As long as you are absolutely sure that the process has been followed, then continue defending the application and get some free advice on whether you have done everything in accordance with the law from ACAS. Get in writing from the FSB why they will not support your case and challenge them on this point. If you have followed their advice and done everything by the book there is no reason why you should not be covered by their insurance provision.

 

[MartCactus]

Call me old fashioned but I couldn't agree more.

It's all very well being "fair" but the more that we see immigrants acting in this manner, the more they will get themselves a bad name. The more they get themselves a bad name, the more resentment is built up within the UK.

Apologies if nobody likes my opinions but I stand by them.

Mister B

Immigrants are like any other class - there are good and bad. We've employed some excellent conscientious ones.

Of course we have plenty of people already in our country who were born here as were their parents and they behave in a similar fashion to the chap we've been reading about here.

Ultimately the problem is with all these silly labour laws... they only serve to protect bad employees. If I hire good people who I want to keep its in my interest to pay them well, treat them well and retain them - whichever country they come from.

If they are poor workers, lazy, disrespectful to clients or other employees, or otherwise unsuitable I'd get rid of them. The law of course serves to protect these types of people - it just isn't needed to protect the good conscientious employees since their employers will take care of them, else the employees move elsewhere to somewhere that does.

 

[Happyeater]

Had a call from ACAS this afternoon to see if I'd be willing to pay this immigrant some money to go away. Their solicitor said they'd be receptive to an offer.

I explained, in great detail what had happened and the ACAS lady got the idea that there was no way I would pay this person a penny. She has now said she would approach the solicitors and tell them the news. We're scheduled to exchange witness statements tomorrow. Looks like we're all headed to a tribunal in the not too distant future.

 

[Mister B]

Well, I wish you luck. Here's to common sense and the right result!

Mister B

 

[KidsBeeHappy]

Happyeater - sorry don't know your name.

You have to turn your emotions, pride, sense of justice, and all other commonsense attributes off.

A tribunal takes a lot of preparation, you will spend days gathering all of the necessary paperwork, timesheets, payroll information, witness statements, evidence etc.

Work out what your time is worth. How much time are you going to waste doing this. I have been through this twice, and I can tell you - it's a lot.

Also, you have to take into account the general half day that you loose through ranting and raving and being generally totally annoyed everytime a letter comes in from ACAS or their solicitor.

If your contracts of employment are not Tiptop. If you don't annually review, appraise etc, then you are starting from a "guilty" assumption, because you have already breached their rights.

How much is your solicitor going to cost?

An employment barrister will cost you £800 a day.

If you win you still have to pay your costs, the chances of the employee being ordered to pay them is minimal.

On the other side, the employee is getting their legal costs covered by either legal aid, CAB etc, or some other law society.

And i think 84% of tribunals go in the favour of the employee, most of them because of the fact that as a small employer, not having a full time HR person to monitor contracts, procedures etc, you will have breached some piddly little rule somewhere along the line.

It WILL cost you £1800 to fight this. Even if you win. My advice, offer them a small amount, and get it over and done with.

An employement barrister would also advise you the same. Unless it's vital that you set an example.

And then join the FSB so you can fight the nuts off them next time, safe in the knowledge that they'll pay the legal fees and the award if you loose.

I really have been here, twice, be realistic, not angry. Yep, said employee is a complete ****hole, have got away with whatever you settle for, and has basically pulled a fast one. But the price of fighting in not cheap. It's S**T, but it's life.

Employment law is totally weighted against small employers

 

[noidea]

Sorry, but who cares if you haven't followed "procedure"??

In employment law there is 5 areas that you can dismiss someone. Minor offences you can give verbal warning then written. Serious offences you can dismiss straight away.

So... next time you sack someone do you give them advice on how to take you to a tribunal? That sounds crazy!

Falsification of paperwork in my eyes sounds serious... fraudulent misconduct should be an offence that can get you dismissed. I mean if you did that at a bank then the chances of you taking the bank to tribunal would be very slim. The chances of jail.. likely.

 

[Mister B]

Sound post from Boxby put unfortunately, that's precisely why people continue to act like charlatans. The more they get away with it the more they will do it.

Until the Government do something about it, (fat chance,) the situation will just get worse.

Each time I read threads like this it just puts me off employing anybody. Is it really worth the grief to get to the next stage-caught in limbo between no employees and employing an HR bod?

Mister B

 

[IainW]

Each time I read threads like this it just puts me off employing anybody. Is it really worth the grief to get to the next stage-caught in limbo between no employees and employing an HR bod?

Mister B

The next stage i would do would to be outsource or get temp workers as i believe they are easier to get rid of, though more to pay

 

[KidsBeeHappy]

This is totally true, and i agree with you Mister B. However taking the principled stand is sacrificing yourself for the greater good, and we're all just small fish in the sea. We need to govt to change the rules and give employers at least an equal chance. Or a really brave judge that's going to stand up and be unpopular by exercising common sense.

 

[DuaneJackson]

Sorry, but who cares if you haven't followed "procedure"??

The courts.

The laws may be ridiculous, but whilst they're law, you have to follow them in order to not get penalised.

Harass your MP or get a body like the FSB to campaign to change the laws. But whilst the laws are there, you have to follow them wheter you agree with them or not.

 

[noidea]

The courts.

The laws may be ridiculous, but whilst they're law, you have to follow them in order to not get penalised.

Harass your MP or get a body like the FSB to campaign to change the laws. But whilst the laws are there, you have to follow them wheter you agree with them or not.

Yes exactly. My point was the legislation is crazy.

If you feel you been dismissed unfairly you go either of the two following routes:

1) local CAB office - for advice

or

2) straight to the solicitors



My specific advice is not to let the laws get to you. Take insurance out to help for out of pocket expenses with such cases and don't get stressed out or downhearted about them.

Be better to become an MP... lol

 

[Happyeater]

Here's the latest update on the tribunal situation.

I was asked to swap all paperwork relevent to the case with this persons solicitor on the 1st August which involved all witness statements etc. The solicitor then dropped out of the case.

We then had notification for a Case Management meeting which was held this morning. I arrived at 9am for a 9.45pm hearing and was left until 10.40am before being sent in to see the Tribunal man handling the case. The Immigrant didn't turn up. The Tribunal chap apologised for the wait and then said that after reading the notes this looks like a "Race discrimination" case to him as we allowed someone with little knowlege of the English language to have no interpreter provided for him!

I explained that this man used to speak good English and I had witness statements to back this up. Also I had a fully completed application form in his hand writing and sign offs of health and safety, manual handling, electrical safety, PPE etc. This seemed to change things a little and out Tribunal chap got a bit less aggressive.

So, now despite this immigrant not following proceedure, not defending himself and now not attending the case management meeting, we'll be called to a full days tribunal hearing in January.

I know a few have advised me to cut and run, pay him off and move on and I totally agree with your points. The issue is that I own a commercial cleaning business with 150+ staff and if this chap gets away with getting a wedge of cash of me for causing me some trouble, then a whole lot more staff may do the same. This man was a cleaner and knows quite a few of my other workers. If it got out that I pay people off rather than fight a Tribunal case, things may get ugly. By making this guy attend meetings, reply to paperwork etc and give a day up for a hearing, it may put people off even if the unthinkable happens and he wins.

 

[Mat_D]

I know a few have advised me to cut and run, pay him off and move on and I totally agree with your points. The issue is that I own a commercial cleaning business with 150+ staff and if this chap gets away with getting a wedge of cash of me for causing me some trouble, then a whole lot more staff may do the same. This man was a cleaner and knows quite a few of my other workers. If it got out that I pay people off rather than fight a Tribunal case, things may get ugly. By making this guy attend meetings, reply to paperwork etc and give a day up for a hearing, it may put people off even if the unthinkable happens and he wins.

Whilst I can see logic behind the "cut and run" tactic, to me it seems cowardly. I fail to see the difference between that, and handing over your wallet to a mugger in the street.

I believe you're doing the right thing. Stick at it and keep us informed!

 

[Happyeater]

Certainly will do. This buggers not getting a penny off me without a fight.

You should see the paperwork on this all now. Its now in three A4 envelopes, which is crazy.

The other thing I was told by the Tribunals chap was that if this immigrant doesn't show for the Tribunal case then I could, "Apply for costs". As if I want to spend more cash trying to get money out of him! The country is going nuts.

 

[KidsBeeHappy]

Cut and run. Then either join the FSB or take up one of the employment insurance policies, and you can be sage in the knowledge that you can run the full exercise with anyone else that follows suit, and it won't cost you a penny.

You are right, others will watch and see a "free lunch" and try and copy. But they'll do this anyway, and you'll still have all the stress and costs of the whole tribunal thing. Even if they lose, they'll not award costs towards an employer (theoretically they can, but pratically, happens in a miniscule number of cases).

Reason i recommend FSB is because they cover any settlement as well as the fees.

 

[Zeno]

I am pretty sure that the guy in question will not show for the tribunal. In fact where you say immigrant I think you mean to say migrant worker so the chances are he may not even be in the country.

If you think about it, where are they sending the details of the tribunal to? Doubtless an address he hasn't lived at for a year or more.

He would have been hoping for a quick settlement from you. As he didn't get it he has lost interest but the UK system and its mindless bureaucracy is still on the case.

 

[KidsBeeHappy]

Did his representative show - or was it a complete no-show on his part?

 

[Mat_D]

Reason i recommend FSB is because they cover any settlement as well as the fees.

Yep. Definitely join the FSB. One of their main selling points is legal cover for employment disputes.

 

[davidakerr]

Happyeater already indicated in previous post they were FSB members, but for some reason (Happyeater didn't elaborate) were unable to help despite Happyeater's claim they followed all procedures......................seems a bit strange, but happyeater seems reluctant to explain why the FSB could not help.

 

[Happyeater]

Thanks for the replies.

Boxby, it was a complete no show, his solicitor has dumped him.

I am in the FSB but I wasn't happy with the advice they gave in this instance. I think they were playing safe when I explained this man was black? Their advice was not to dismiss when it was a very obvious gross misconduct offence. In my opinion, to leave this man on site would have put the jobs of 11 other cleaning staff at risk and cost me a lot of money.

 

[DavidRyves]

I've come in a little late on this thread - but I'm curious about some of this did you get any advice yourself before the CMD? There are a number of issues such as the claimants failure to complete the internal process, whether you did actually follow the Statutory Dismissal Procedure (sound pretty much as if you did) - most importantly if you observed the claimant's right to be accompanied etc.

You don't say anywhere what is actually being claimed (unfair dismissal, discrimination etc) and what the claimants schedule of loss amounts to. If it's an unfair dismissal claim and the decision to dismiss was based on reasonable belief that he had falsified documents, and that this belief was based on reasonable grounds that had been subjected to reasonable investigation you probably don't have a case to answer. If it's only listed for one day the Tribunal probably thinks this as well (which Tribunal is it?). I would have used the CMD to try to persuade the Trib that the claim was 'misconceived' with 'little chance of success' and tried for a strike-out.

 

[KidsBeeHappy]

Maybe worth spending a couple of hundred quid on a PI? If he has left the area, and there's no way of contacting him then it does give you the knowledge to take proper decisions.

Can't believe the judge made that ruling when they couldn't even be bothered to show. Just goes to prove how skewed employment law is to the employee when a judge rules that there is a case to answer from a non present plaintiff. And that TBH is your real problem.

Did they send in submissions by post?