Unfair Dismissal Question...

[katelauren]

Hi guys,

I am about to take legal action against my former employers as they have dismissed me for 'under performance' with no evidence.

At the moment my main concern is that when applying for new jobs, certain roles are obviously asking for references and reasons why you left your last role.

My question is.... if I win my case of unfair dismissal, does this mean that my record is wiped clean and that I should never have to declare that I was dismissed from a job?

Thanks

 

[ShortCouture]

When references are given these days they usually just confirmation that you did work there and your start/end date. No-one gives a real 'performance' reference anymore as everyone is afraid being sued.

Try to give the HR person as the reference contact - they should just confirm facts.

Presumably you have an employment lawyer working for you - don't attempt this without one.

A reason for leaving must be believeable and positive, so rather than 'I didn't like my boss', or 'the work was boring'. 'I wanted a more challenging role'.

Presumably you were there more than a year.

 

[Vending Siting Services]

When references are given these days they usually just confirmation that you did work there and your start/end date. No-one gives a real 'performance' reference anymore as everyone is afraid being sued..

Not always the case. Questionnaires are sometimes sent out confirming dates, reason for leaving etc and also a question ... Would you re-employ this person again, if not, why not.

Barbara

 

[ShortCouture]

Not always the case. Questionnaires are sometimes sent out confirming dates, reason for leaving etc and also a question ... Would you re-employ this person again, if not, why not.

Barbara

Yes indeed. what I should have said is that many companies have a policy of only giving out facts (regardless of what is requested) - start/end date etc.

You could call someone in HR and ask what the policy is.

 

[The Resolver]

My question is.... if I win my case of unfair dismissal, does this mean that my record is wiped clean and that I should never have to declare that I was dismissed from a job?

Thanks

Winning your case does not mean you were not dimissed.

It also may not mean that they did not have good reason to dismiss you.

Winning your case may mean, depending on the evidence, simply that they did not follow a fair procedure when dismissing you.

However, the Tribunal may decide that, whilst they followed a fair procedure, no reasonable employer would have dismissed you for the reasons given.

So winning is not the answer to preserve a good record. If you have a strong case that may involve them in a largish compensation element to the award, then it may be better, espcially if the type of work you have been doing is your likely lifetime career, to try to negotiate reinstatement.

Its very important to offer mediation before you issue in the Tribunal since, apart from avoiding the risk of losing the case, if they refuse and you then win you can then seek an uplift to the award.

BTW do not confuse the Tribuinal's statutory ACAS service as mediation. Despite claims to the contrary, ACAS does not offer mediation but something different being a simple shuttle message delivery service of offers and counter-offers.


Once the case is over, then you can report the outcome on your CV - eg "the Empoyment Tribunal decided I had been unfairly dismissed' and add in 'because no reasonable employer would have dismissed me in the circumstances' (if that was the reason given).

Bear in mind that some employers may prefer not to employ someone who is Tribunal savvy - although they are best avoided anyway!

 

[katelauren]

Thanks for your input guys.

I have got an employment solicitor on the case for this. The company I worked for made sure that they dismissed me 2 days before my year was up but I have been told by legal advisors that I am entitled to my statutory 1 weeks notice which takes me comfortably over the year mark.

The company I worked for don't have a HR department as it is not a massive company (around 90 - 100 employee's).

Sadly I don't see that reinstatement could ever be an option. The job I was doing was my career (graphic designer), however as most of design work is subjective, If I went back to work under the same creative director he could quite easily make my life hell by disagreeing to everything I do.

To give you a bit of background, I had been doing this job for 10 months with no complaints, then I had to make an informal complaint about one of my creative directors before xmas due to bullying remarks he was making to me (which another director witnessed). No effort was made to resolve the situation on their part, then suddenly with no warning I was told I was having disciplinary action brought against me for 'under performance'. All of this happened within the space of a week. I was given 3 days to 'prove' myself then dismissed. The outcome was clearly pre determined before the hearing had even taken place as I was told that I would get a reference and told about dismissal pay. However I feel I cannot trust what they say about the reference as they treated me so badly during that final week.

Like I have said, my main concern now is that my career as a designer is built a lot on reputation, and this could be seriously harmed by them dismissing me.

 

[sjbeale]

You could consider including re-employment (reinstatement/re-engagement) with your ex-employers as part of the remedy. If you are re-employed you would receive compensation back dated to your termination date as well. Reinstatement would be back to your old role, re-engagement would be to another role, possibly under another creative director, which could help your reputation. This could be a tool to get early settlement and save the company the hassle and cost of fighting this or the tribunal could order that you be re-employed if you win.

I am currently representing a claimant case where the claimant wants to be re-employed and although the respondent is adamant they will not offer this I shall aim to win at tribunal and try and get him his job back with compensation for the year of financial hardship he has suffered.

 

[Chris Ashdown]

You would be far better going imediatly as self employed for a few months so your work history is started xxx ltd 1 jan 2011 left 22 dec 2011 self employed 1 Jan 2012

That way most will not bother about asking the first company and consider you a person who is confident of his own skills, you can always say the contract you were expecting never materialised

If you mention Tribunal you will be dead before starting at most companies, continue if thats what you want, but keep it to yourself,

 

[LawontheWeb]

hi,

couple of things here...the first is whether you have a claim...been there more than 1 year, and no fair reason or procedure of followed then speak to a solicitor (initial interviews usually free),

re' the second bit - bad references, the leading Court case is called Spring, (House of Lords), which held that where n employer gave an unbalanced reference which caused an ex employee loss, they were liable in negligence for that loss...

so, if you know that your employer gave a bad reference which was untrue/unfair you may have a claim for damages...

many employers don't know this!

 

[katelauren]

Thanks, again guys for your comments/advice.

Next question...

I have appealed the decision of the dismissal and my former employer got back to me today with an appeal date of next monday. In the letter it states that the hearing will be with one of the directors of the company and that I can bring in another employee with me. The problem is though, that everyone I have asked does not want to accompany me to the meeting for fear of implicating themselves and their own jobs after seeing the way I have been treated.

I am not part of a union... do I have a right to ask to take someone else in? Or am I going to have to go in without representation?

 

[Chris Ashdown]

The person is not there to state your case, they are there just to be your frend, hold your hand etc and give you advice if needed, so no way they are putting themselves on the line

 

[Consistency]

Absolutely sickening how a notice period, free money for no work, can take someone over the one year period.

 

[kulture]

The person is not there to state your case, they are there just to be your frend, hold your hand etc and give you advice if needed, so no way they are putting themselves on the line

Easier said than done. In a small company, sometimes personalities and appearance can be different from this.

 

[kulture]

Absolutely sickening how a notice period, free money for no work, can take someone over the one year period.

Or, to put it another way, how stupid of a employer to not take proper advice over the law before sacking someone.

 

[eventdomain]

I have some experience of this..... my advice is go for settlement - as its my understanding that Tribunal cases take upto 5 years to be heard, and this rather sounds like Constructive Dismissal, than a normal straight firing - although I dont know the full details, but I hear that 'voice' and it reminds me that 'hell is other people'...

I say this - bcos normal firing wont usually include the ploy of 'incompetence' as being employed for nearly 12 months, surely they'd had to of dismissed you much earlier, if you were that bad, and if you were that bad, your lack of 'skill' would of revealed itself earlier.

It could be a case of you being hated, they feel very threatened by you, your expertise, your achievements, even your presense can be enough for them to get rid of you - so it doesnt have to be Gross Misconduct - far from it!

Do you really want to fight this? I mean, what are you prepared to do - bcos if you open the doors on employers, you will have to go all the way, they wont give up the fight.

The company will want to sweep this under the rug, BUT they may not!! - the stress and waiting involved, and the only thing anyone remembers is that you were a trouble-maker, by pursing Tribunal. Are you doing this out of revenge? you want justice, well justice can be painful, and more trouble than its worth.

If they settle out, basically you win and they admit they have no case! -- take their offer of cash - and settle for that. You wont really win otherwise and you're better off starting new elsewhere.

 

[Consistency]

Or, to put it another way, how stupid of a employer to not take proper advice over the law before sacking someone.

Indeed indeed indeed.

Could not agree more that it is absolutely esential for an employer to seek legal advice for anything to do with an employee. The law is an ass and so very complicated and employee law is on a par with criminal law. Someone cannot just be dismissed, there are procedures, money, time etc. A lot of these cases ocurr because until someone experiences a compensation claim, or long winded tribunal, they well underestimated employment law.

Prevention is far better than cure and if this employees performance was in question, his company should have got rid much earlier rather than wait until the last minute.

 

[sjbeale]

If you don't have a colleague who can accompany you or not in a trade union you can ask the company if you can take in a friend to take notes. Alternatively could you find an HR consultant to help you (I do this kind of work provided the company allows me in as a companion - some do, some don't).

The company has the right to refuse your choice of companion if they don't fit with the legislation, but I think you do need representation of some kind. Somehow there needs to be some flexibility. If the company can not show this and they dismiss you it will not help their defence.

 

[Employment Law Clinic]

The person is not there to state your case, they are there just to be your frend, hold your hand etc and give you advice if needed, so no way they are putting themselves on the line

The companion does have the right to state the case. Their rights (per section 10(2B) of the Employment Relations Act 1999) are:

(2B)(a) address the hearing in order to do any or all of the following:

1. put the worker’s case;
2. sum up that case;
3. respond on the worker’s behalf to any view expressed at the hearing;

(b) confer with the worker during the hearing.


Karl Limpert

 

[paulears]

I believe you are entitled to a 'supporter' - who can be anyone. Asking an existing employee does indeed put them in a difficult position. It could be implied that by seeming to side with you - which even if they are totally impartial and don't even speak, the bosses my think they are doing. In a small firm, wrong impressions can harm career prospects.

 

[Employment Law Clinic]

A worker is not entitled to a "supporter", but a "companion".

The definition of a companion is found at section 10(3) of the Employment Relations Act 1999:

(a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992,

(b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or

(c) another of the employer’s workers.
​

The courts have extended the interpretation of a companion in some instances, but in most cases the above still applies - it cannot be just anyone.



Karl Limpert

 

[paulears]

Another reason why even if you are against unions, membership has advantages.

 

[Employment Law Clinic]

Another reason why even if you are against unions, membership has advantages.

Or having a friend that's a union rep - as long as the person is certified as trained, they can act, and there is no need for the trade union to be recognised or for the employee to be a member of the union.



Karl Limpert

 

[katelauren]

Hi Guys,

Again thanks for all advice given.

Here's an update... I emailed my employer asking could I take in someone from outside the company as none of his employees were willing to attend for fear of implicating themselves. He agreed to this but stated that they were not allowed to participate in the meeting and were only there to take notes and give moral support.

Well ive just come out of my appeal meeting. As expected, after a 2 hour meeting it took them 15 mins adjournment to decide that my appeal was not being upheld.

In my letter inviting me to the appeal, I was only told that the company director would be attending. When I arrived for the meeting there was an additional HR person there, and also my creative director who took the initial disciplinary. I thought this would not have been allowed, when i questioned it I was told it was wrong.

 

[Consistency]

Creative director!
Creative title!

 

[Do it yourself]

Hi Guys,

Again thanks for all advice given.

Here's an update... I emailed my employer asking could I take in someone from outside the company as none of his employees were willing to attend for fear of implicating themselves. He agreed to this but stated that they were not allowed to participate in the meeting and were only there to take notes and give moral support.

Well ive just come out of my appeal meeting. As expected, after a 2 hour meeting it took them 15 mins adjournment to decide that my appeal was not being upheld.

In my letter inviting me to the appeal, I was only told that the company director would be attending. When I arrived for the meeting there was an additional HR person there, and also my creative director who took the initial disciplinary. I thought this would not have been allowed, when i questioned it I was told it was wrong.

So where does this leave you? Are you sacked? Are you going to pursue unfair dismissal?

 

[frmarcus]

Interested in this thread as I won (on substantive grounds) my unfair dismissal appeal to the Civil Service Appeal Board, which has the same powers as the Employment Tribunal. They ordered re-engagement - and, disappointingly, after many weeks' waiting my ex-employer has refused the order. There appears to be no right of appeal, so a compensation order will be made, with, hopefully, the usual uplift for refusal (though I have not been given the reason(s) there is no way it can be on impracticability grounds as the employer is a very large public sector institution with several vacancies at my existing grade).

I made it very clear to the employer that I wished to return - in part because of the effort needed to get another post and the issue of references to do so. Compensation is all very well - but it doesn't get one another job and I certainly think that some stigma attaches to a dismissal, however unfair that is. Does a potential employer want someone who was dismissed and went to a Tribunal? At the very least it'd unhelpful.

My propblem, then, is how to be sufficiently candid in an application so as not to be deemed deceitful should the 'whole picture' come to light while avoiding having to state something that should never have happened (dismissal) A tough one! It's a pity that unfair dismissal almost never attracts a 'stigma' award. As a regulated professional the dismissal has caused me monumental difficulty (never mind hardship). Winning the appeal was a great relief - but it doesn't restire me to where I was...