Unfairly dismissed - do I disclose?

Discussion in 'Employment & HR' started by frmarcus, Aug 27, 2013.

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  1. frmarcus

    frmarcus UKBF Newcomer

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    Your kind wisdom would be much appreciated.

    In 2010 I was dismissed from a civil service post. In 2011 this was deemed substantial unfair dismissal, a compensation order and re-engagement order being made. The latter wasn't accepted by the employer, thus compensation was uplifted. Unfortunately, during the pendency of the appeal I was dismissed from my *subsequent* job because they discovered that I'd been dismissed from the previous (I had not in fact been dismissed when I applied for, and commenced, the second job): a total nightmare that felt so unfair. The circumstances of the disclosure about the first dismissal were very unusual.

    My question is whether there is any legal requirement for me to disclose the (first) dismissal, given that it was found unfair (and, in fact, was the most favourable possible outcome to me)? Morally I think absolutely not: I've already suffered unduly from the 'ripple effect' of the first dismissal, and I have absolutely no confidence that a potential employer would be anything other than wary of an applicant who had succeeded at the ET.

    As a professional the initial dismissal had a devastating effect, because my 'registration' was also suspended pending the tribunal (and reinstated following the upheld appeal), preventing me from working in my profession until 'cleared'.

    I recently applied for work in the field of work I was initially dismissed from, and was appalled to be told by the employer today, who had shortlisted me, that information had just been provided from a third party organisation that I had been dismissed from a sister organisation. Why did I not disclose this? I explained the above... and their tone changed. The third party organisation didn't report, presumably because they didn't know, that I'd been found unfairly dismissed and also professionally 'cleared' (I am working in said profession but for another employer).

    There seems to've been some hasty consultation with HR, and a new interview date's been offered - which I think is 'window-dressing'. I believe my candidature's been irreparably damaged by this prejudicial disclosure (by an organisation bound by the Data Protection Act) (and the subsequent one of tribunal appeal).

    It seems to me that the third party organisation has been negligent in the (mis)information it supplied, and that in any case it should not have disclosed it. It gets worse: it was the person I'm being interviewed to replace that told me of all this on behalf of the manager. I can see no justification for effectively a colleague being informed of sensitive personal data by the third party. This episode screams 'mismanagement'.

    I'm pretty angry and distressed because I feel 'defamed' by negligent - because inaccurate and prejudicial -and inappropriate (illegal?) data disclosure. Advice about realistic redress would be much appreciated - if only to try to prevent this third party 'seive' from doing this again...

    Many thanks indeed.
     
    Last edited: Aug 27, 2013
    Posted: Aug 27, 2013 By: frmarcus Member since: Oct 3, 2011
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  2. Merchant UK

    Merchant UK Verified Business ✔️

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    I think with some jobs unless you fail to disclose full details of your previous employment or decide not to tell them and they find out later, it could lead to your dismissal.

    It may not just be because of the type of dismissal you had but purely because you didn't declare it at the time of the application.
     
    Posted: Aug 28, 2013 By: Merchant UK Member since: Aug 15, 2010
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  3. Walkol

    Walkol UKBF Ace

    554 125
    Why not disclose from the outset, stating it was found to be unfair dismissal?

    While I agree (not sure on legalities btw, just a personal viewpoint) that you shouldn't have to bring it up, but by doing so you are showing the potential new employer from the outset that you have nothing to hide.

    While you may have some initial set backs and it seems unfair, honesty is always the best policy.
     
    Posted: Aug 28, 2013 By: Walkol Member since: Sep 14, 2012
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  4. Newchodge

    Newchodge UKBF Legend

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    It's simple. Most recruiting employers will ask about your work history and your reason for leaving each job. If they ask this and you lie about it you can later, at any time, be dismissed for gross misconduct. There have even been cases of people prosecuted under the criminal law for lying on job applications - I thin it was obtaining a pecuniary advantage (a job) by deception.

    Tell potential employers all the facts.
     
    Posted: Aug 28, 2013 By: Newchodge Member since: Nov 8, 2012
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  5. frmarcus

    frmarcus UKBF Newcomer

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    Thanks for your opinions and advice.

    The problem with disclosure, as has been pointed out by others on this site, is that you may attract prejudice (and it's unquestionably unfair, when, as in my case, I was effectively 'restored' to my pre-dismissal position by a reinstatement order) just because you were dismissed, AND because you had the temerity (!) to go to Tribunal (awkward employee). Arguably you'd not be employed in the first place to risk non-disclosure dismissal later. Of course, employers won't use this is a reason for rejecting you - they'll just find another reason.

    This brings us to the heart of the matter: if your dismissal were found substantively unfair (as opposed to merely procedurally - though this may be academic) and, furthermore, a reinstatement order was made such as to 'clear' you by restoring you to you former status, how on earth could a subsequent employer dismiss for non-disclosure? Surely that would be prima facie ground for (another) unfair dimsissal claim??? Surely a Tribunal would find an employer unreasonable?

    My unfair dismissal finding and order for compensation and reinstament was issued by the Treasury Solicitor: it would appear to be a legal instrument or restoration that should, at least, override the dismissal, thus expunging it from one's work record.

    Is there any relevant case law?

    A final thought: if there's no legal requirement to disclose dismissal - it appears to be a subjective determination - it must be a subjective employer decision whether to (try to) punish non-disclosure. That sanction could, reasonably, be upheld by a Tribunal where the dismissal were not deemed unfair - but surely not otherwise? I did raise this with an employment lawyer, who stated that no wise employer would risk defending dismissal for non-disclosure in this circumstance as they're likely to lose at Tribunal.
     
    Last edited: Aug 28, 2013
    Posted: Aug 28, 2013 By: frmarcus Member since: Oct 3, 2011
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  6. frmarcus

    frmarcus UKBF Newcomer

    6 0
    In reply to Cyndy, for which many thanks, 'have you ever been dismissed?' cuts to the chase. I was not in fact asked that question in the situation I outlined in my opener.

    But even here, for the reason stated just above, doesn't a reinstatement order (which are very rare), at least, effectively 'undo' a dismissal, and being undone, it never happened, therefore there's nothing to disclose...?

    Maybe unfair dismissal itself is sometime too low a threshold for non-disclosure - but I'd argue that reinstatement / re-engagement order certainly places one in the firmly 'dismissal overruled' threshold: it didn't happen.
     
    Posted: Aug 28, 2013 By: frmarcus Member since: Oct 3, 2011
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  7. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    Michael,

    If you’re the most suitable candidate for the job, the employer won’t care that you were unfairly dismissed from your previous position, or otherwise. They may well care if you decide that you conceal the reasons for leaving though, reasons you put on a public document, available for public inspection – the ET1 that commenced your tribunal claim: dismissal, be that a fair dismissal or otherwise.

    Being honest may attract prejudice, but being dishonest should rightly attract formal action – as Cyndy said, in the form of gross misconduct... for which a fair dismissal would follow, a new badge for your career history!

    The facts as I read them from your posts are that you were dismissed. You weren’t reinstated, so the dismissal (albeit unfair) applied – it stood, you were dismissed, your employment was ended by reason of (an unfair, to be complete) dismissal.

    There is no legal requirement to disclose this fact, but you have already disclosed it publicly, and copies are often accessible to any interested employer, regardless of timescale (the tribunal will destroy the documents in a year or two, but other companies may keep copies for sale or research).
    I have to concede, I don’t do “wise” – this is interpreted as “the safe option”, and this can be costly for many small employers with some employees. Nothing personal Michael, but I would love to take on a case like this for the employer, as while there might be nothing in law to disclose dismissal, apart from already disclosing it publicly, if you then try to deliberately conceal your reasons for leaving on an application form you’ll be blatantly lying, and that is a gross misconduct issue (I don’t do criminal law, but I think the term might be fraud); I would recommend, and happily defend (and even create the case law for you – with your name in the references!), a dismissal without hesitation.

    There are laws that protect employees against disciplinary action for exercising a right; there are laws that protect against discrimination for a protected characteristic (this doesn’t include being unfairly dismissed); there are laws that protect against blacklisting. I don’t know of any law (or case law) that protects against deliberate deceit, but if you’re a good candidate for a job, you should be able to be honest & entirely open anyway – that approach would hold you well long-term.



    Karl Limpert
     
    Posted: Aug 29, 2013 By: Employment Law Clinic Member since: Aug 10, 2009
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  8. frmarcus

    frmarcus UKBF Newcomer

    6 0
    Thanks, Karl. I suspect there's a difference - at least in degree - between dishonesty - denial - and of lack of candour: non-disclosure of all fact.

    The fact that a dismissal is already publicly disclosed seems to me a moot point. The issue is whether disclosure is made to a potential employer. Indeed, could one not argue that the fact that it's in the public domain is sufficient and an employer is free to do his own research. I can't see that this advances your argument...

    "(I don’t do criminal law, but I think the term might be fraud)": no, this isn't fraud as such; rather, in a job context, lying could be conceived of as obtaining a pecuniary advantage by deception (the wage for the job that one might not or would not have got had there been no deception). However, this is typically instanced, and prosecuted, in deception over either experience or qualification. I very much doubt that it could apply to non-disclosure of unfair dismissal as there's no 'unfair' attempt to gain unjustified advantage (it's not unfair not to disclose an unfair dismissal; it is to claim experience/qualification one does not have, thus advancing oneself over others).

    Interestingly, in law a false statement of opinion, no matter how persuasive, is not a deception. It is my opinion (even if 'false' - though it is in fact sincerely held) that my reinstatement order (whether complied with or replaced with punitive uplift of compensation, as it was) replaced/undid/superseded the unfair dismissal - as is its intention.

    If you *were* to defend a dismissal case such as this scenario - which appears to have captured your imagination (!) - this would be a central plank of my defence - that there is no deception legally. Of course, the onus is on you to defend dismissal as reasonable... I don't fancy your chances...

    I did find in my tribunal case that HR reps, defending the employer dismissal, were embarrassingly hopeless, even scoring own goals through lack of basic understanding of legal propriety. The panel made the HR rep and decision-maker (manager) look incompetent through forensic questioning - they were - within the first five minutes: I knew I'd won. HR bods aren't lawyers - yet we're dealing with employment law and legal rigour is required. My experience of HR bods is that they exist to defend the employer from employee 'risk' and are necessarily one-sided, as well as being legally unqualified. One-sidedness cannot work in employment (or any sphere of) law because its nature is that all sides must be seen from a legal perspective, and strategy determined.

    No offense to HR prof's, but I'd always seek legal, rather than HR, opinion, because the latter must conform to the former in the final analysis, so one might as well cut to the chase from the start...

    With thanks and best wishes,

    M

    “Seldom, very seldom, does complete truth belong to any human disclosure; seldom can it happen that something is not a little disguised or a little mistaken.”
    ― Jane Austen, Emma
     
    Posted: Aug 29, 2013 By: frmarcus Member since: Oct 3, 2011
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  9. Newchodge

    Newchodge UKBF Legend

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    OK, let's look at the reality.

    You do not mention anywhere in your job application why you are no longer employed by 'X'. You do not have to mention this if the application does not ask the question.

    You get to interview and the question is asked - you left 'X' in 2011, why did you leave?

    What would you be able to say that did not disclose the fact of your dismissal and is not a lie?

    A reinstatement or re-engagement order does not change history. Your employment was terminated, it was terminated by your employer, it was therefore a dismissal. The only other options are that you resigned or that the employment was terminated by mutual consent, neither of which is the case.

    Just because an employment tribunal found that the dismissal was unfair and should not have happened, does not mean that it did not happen.
     
    Last edited: Aug 29, 2013
    Posted: Aug 29, 2013 By: Newchodge Member since: Nov 8, 2012
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  10. Steve Sellers

    Steve Sellers Verified Business ✔️

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    Where it says reason for leaving in the application you can only tell the truth e.g. dismissed due to being pregnant or whatever the real reason was - the verdict of the tribunal being as real as it gets

    ps Marcus - those criminal laws you refer to such as obtaining a pecuniary advantage no longer exist.
     
    Last edited: Aug 29, 2013
    Posted: Aug 29, 2013 By: Steve Sellers Member since: Aug 7, 2011
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  11. frmarcus

    frmarcus UKBF Newcomer

    6 0
    Thank you, Newchodge and Steve.

    I'm not sure matters are as simple as you suggest. To demonstrate fraud - since this has been raised - it would have to be shown that the non-discloser were seeking though deception to accrue and advantage *to which they were not entitled* (ie, the job), rather than merely avoiding a disadvantage (prejudice against dismissal even were unfair). It seems to me it would be extremely difficult to demonstrate fraudulent intent - and thanks to Steve for pointing the change in law out - by non-disclosure of unfair dismissal. Fraud requires more than mere deception.

    A possible parallel situation is in disclosure of penalty points to vehicle insurers. Points cease to be applicable after three years for 'totting-up' purpose after three years, and are erasable from the license after four. But insurers frequently ask for the last five years' activity. Law has established that while the question is permissible, disclosure of penalty erased after four cannot be used prejudicially against the driver through increased premium. Indeed, the question has been asked by the ombudsman why, therefore, an insurer would ask for disclosure of four years' -plus historic penalty if it cannot make any difference (as it can't legally) to it's risk assessment.

    Equally, in respect of an unfair dismissal, why would an employer, bound not to prejudice a potential employer because of an unfair dismissal disclosure, nevertheless want the information, or seek to punish the employer retrospectively, perhaps through dismissal? Doing the latter seems merely petulant, and the former - requiring disclosure - pointless.

    Lest you suggest that the employer *could* legally use disclosure against a candidate, thus damaging him, I'd point to case law whereby the potential employer failing to employ on the ground of prejudice (not protected characteristics) is liable for damages (lost earnings). In practise it might be hard to show that the disclosure of an unfair dismissal prejudiced one into losing a job, but in principle it's certainly actionable.

    In short, if an employer dismissed an employee for non-disclosure of prior unfair dismissal, and he went to tribunal, it could very properly ask the employer what difference disclosure would have made, and if none, why did it dismiss? If the employer cites loss of 'trust and confidence' in the employee, the latter might reply 'QED': he was unable to have trust and confidence in the employer precisely because, by inference, the employer wouldn't have employed him - unfairly.

    For this reason I just don't think this matter's nearly as clear-cut as is suggested, at least from the legal perspective.

    At my tribunal, I found the panel asked just these sorts of seemingly sensible, reasonable questions of my former employer - who simply could not respond vaguely convincingly.
     
    Posted: Aug 29, 2013 By: frmarcus Member since: Oct 3, 2011
    #11
  12. Newchodge

    Newchodge UKBF Legend

    16,065 4,535
    "Equally, in respect of an unfair dismissal, why would an employer, bound not to prejudice a potential employer because of an unfair dismissal disclosure, nevertheless want the information, or seek to punish the employer retrospectively, perhaps through dismissal? Doing the latter seems merely petulant, and the former - requiring disclosure - pointless."

    On what legal basis is an employer bound not to prejudice a potential employee because of an unfair dismissal disclosure?

    A potential employer is bound not to a prejudice a potential employee because of a protected characteristic under the Equalities Act, or because of a conviction that is spent under the Rehabilitation of Offenders Act. An employer may not dismiss for an employee trying to assert a statutory right. None of that applies in this case.

    "Lest you suggest that the employer *could* legally use disclosure against a candidate, thus damaging him, I'd point to case law whereby the potential employer failing to employ on the ground of prejudice (not protected characteristics) is liable for damages (lost earnings). In practise it might be hard to show that the disclosure of an unfair dismissal prejudiced one into losing a job, but in principle it's certainly actionable."

    OK, please point me to the case law.

    You haven't answered my question about what you would answer if asked in interview why you left 'X'.

    An employer who dismisses an employee on finding that they deliberately lied to obtain their job is pretty safe from a successful unfair dismissal claim; which could not even be launched if the employee did not have 2 years' service.
     
    Last edited: Aug 30, 2013
    Posted: Aug 30, 2013 By: Newchodge Member since: Nov 8, 2012
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  13. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    Oh, I do agree with you Michael, there are a lot of incompetent practitioners in the employment law field, and all parties should be wary of them.

    One case should be enough to prove your argument: Prosser v Saunders Bakery. The original solicitors acting for the respondent suggested settling for £10,000 if possible (the claimant was seeking £20k), as the case was a total loss, none of it could be defended.


    While there was undoubtedly no holiday pay paid for seven years, no employment contract issued, and other issues, I assessed the maximum exposure possible to be about £4,000. Of course, having to see a client pay out £1,257 (less than undeniably due), and actually been found to have unfairly dismissed in principal (the respondent having followed advice from another solicitor's firm), was disappointing, but I wouldn’t describe it as an own goal – and the tribunal’s description for part of their judgment (“with great reluctance” when they had to ignore six year’s holiday pay because the claimant’s solicitor hadn’t acted within time) only appeared as an own goal for the claimant's solicitor that had lost her six years' holiday pay! :eek:

    Clearly the solicitors in the case were by far the most suitable advocates, and should have concluded the case... even though they encouraged my client to pay out £10,000, and Prosser's losing her six years holiday pay, but without a doubt, much more capable than "HR bods" because
    :rolleyes:


    At the end of the day, you've convinced yourself that you have a solid defence. I have no idea why you posted a request for wisdom when there's only person contributing to this thread possessing a fountain of wisdom - informed by the experience of a whole tribunal hearing - but as you know best, you go ahead and lie to prospective employers. When you get sacked though, do please pass on my details to the boss, as I'd still be interested in the case; I wouldn't recommend you instruct counsel though, a waste of too much money, a solicitor should be fine to lose the claim for you.


    p.s.

    Karl Limpert
     
    Posted: Aug 30, 2013 By: Employment Law Clinic Member since: Aug 10, 2009
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  14. Steve Sellers

    Steve Sellers Verified Business ✔️

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    Can I just add to this, and sorry for the blatant flattery (I am an employment law geek hence this excited me). I have just opened a newly published version of one of the handbooks for employment law solicitors and hr people on employment law. One of Karl's cases is in it - which he won!. It kind of says it all, and he represents us non solicitor employment law people very well.

    I have worked in solicitors firms' and now do HR. I can honestly say I have seen many incompetent solicitors who simply should not be doing the job. Equally I have seen some who are absolute geniuses with brilliant tactical minds for litigation. I have seen the same with HR people. The only real difference, in my honest opinion, is that solicitors are guaranteed to have PI insurance. HR people if they are good enough will get it for a start, and its there to back up their work.

    Interestingly enough I think both are different but often, simply, have specialist skills in different areas of HR AND employment law.
     
    Last edited: Sep 1, 2013
    Posted: Sep 1, 2013 By: Steve Sellers Member since: Aug 7, 2011
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  15. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    Thank you Steve, I hadn't even thought about that case. I think paragraph 44 of that judgment
    does make Michael's arguments very well: if you want to be let down, pay a solicitor to do it, because they're qualified to charge a lot more, and do it in style!


    For those that simply want a great service at a fair & proportionate price to the claim, and don't care about the grandeur of their advocates, but prefer only to focus on their capability in the tribunals, consider a non-regulated lawyer. For the Michael's of this world, pay a solicitor/barrister to lose in an expensive & embarrassing style.


    Karl Limpert
     
    Posted: Sep 1, 2013 By: Employment Law Clinic Member since: Aug 10, 2009
    #15
  16. sirearl

    sirearl UKBF Legend

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    Another fine piece of justice gone amiss.

    So the manager forgot to mention to the dirsctor that the lady was pregnant although she was living with him.:D:D:D:D
     
    Posted: Sep 1, 2013 By: sirearl Member since: Apr 23, 2007
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  17. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    I'm sure the case already has a thread somewhere in the Legal archives Earl, so don't want to take this thread off in a pointless digression. The fact the manager didn't mention anything about the pregnancy, while mentioned in the judgment, was a non-issue though: the employee (a manager herself) did not give notice that she intended to take maternity leave, as she was required by law to do if she wanted a year off (I'm sure you'll agree, a reasonable expectation if planning to take 365 days off!*), and I was fully aware of her pregnancy (about 7/8 months at that stage) when the decision was taken to dismiss.

    Nothing amiss about the judgment based on who knew what when though.

    (If you do care to discuss this matter, can we try to find the old thread instead?)


    *Don't take that to suggest you would need to give notice if you wanted to take a year off from here though. ;)

    Karl Limpert
     
    Posted: Sep 1, 2013 By: Employment Law Clinic Member since: Aug 10, 2009
    #17
  18. beasty

    beasty , Verified Business ✔️

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    Ran out of time reading this so skipped to post

    The bottom line here to me is that regardless of the legal rights and wrongs this is like a Neutral feedback on ebay, the person leaving it says neither positive or negative but the WORLD sees it as a negative

    This is how i see the tribunal, sure you won and got reinstated etc the employer is not going to be positive about you, nor can they really be negative but victory only leaves you in in a neutral position and that is seen as negative to most.

    I like my analogy and stick by it..
     
    Posted: Sep 2, 2013 By: beasty Member since: Feb 4, 2013
    #18
  19. Root 66 Woodshop

    Root 66 Woodshop UKBF Legend

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    Hmm.

    Based upon an answer given by the OP as to which the dismissal was over-ruled then how is it that the OP is now being branded as a liar because he saw it something that wasn't needed to be disclosed?

    It's not as if he's actually broken the law in anyway shape nor form, the dismissal was overturned therefore there was no dismissal surely? Plus it was X years ago what on earth does that have to do with anything now?

    In all fairness to the OP it seems as though people are assuming that he's withheld something willingly and that he's done something extremely wrong, i.e. "broken the law" hence why the new company were questioning him about a previous employment... yet no one has actually asked him if he has or hasn't. The fact that people don't know the reason(s) as to why he was dismissed in the first place is kind of demeaning towards the OP.

    If it had been something illegal and he'd been charged for fraud or even done time, then I could understand it, but all the chap wants to do is get on in life and secure a job - and all HR companies want to do is live in the past with him.

    :( Sad really.
     
    Posted: Sep 2, 2013 By: Root 66 Woodshop Member since: Nov 22, 2011
    #19
  20. Newchodge

    Newchodge UKBF Legend

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    Hi Haunted.

    I think you are being a little harsh here. Have a look at my post at number 9. The fact that a dismissal has been found unfair, even when reinstatement/re-engagement has been ordered, does not change the fact that the employment terminated through dismissal. If the ex-employer had complied with the reinstatement order, then the dismissal would have been overturned and the OP would have had continuous employment with that employer until they left. But reinstatement did not happen.

    Most employers explore past employment history. What does the OP say when asked - why did you leave this employment? He left because he was unfairly dismissed. Saying anything else would be not telling the truth.
     
    Posted: Sep 2, 2013 By: Newchodge Member since: Nov 8, 2012
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