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 

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

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

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

Which leads me to the second point:

2.1 The reason for the dismissal was given as 'Some Other Substantial Reason'. This has been upheld in spite of the fact that it has been admitted in the letter of dismissal and in Mrs Saunder's witness statement that the alleged 'misconduct' was not serious enough to warrant dismissal. As stated above: the allegations were based on 'lots of little things.' It seems to have been overlooked that dismissal under this category has to be 'substantial.' It has been overlooked that in her statement Mrs Saunders accepts that I did not know what 'misconduct' I had been accused of.

2.2 The Tribunal failed to look in detail at the 'breakdown in relationship' or 'trust and confidence' that was cited as the reason under SOSR. As the alleged 'misconduct' described did not cross the line, how could the allegations then be sufficient to lay the blame on me for the breakdown of the relationship? Please read point 34 of my witness statement and the extracts from my closing submission. I have described, with evidence, how my relationships with my colleagues were not irretrievable at the culmination of the grievance. It was the long suspension and the aggressive disciplinary that soured our relationships. As would be expected by any reasonably minded person, after such a long suspension and such an aggressive disciplinary, my colleagues were too embarrassed to face me or to accept me back into the workplace. Please read the section from my closing statement 'I did not contribute to my dismissal.'

2.3 The Tribunal failed to examine the circumstances of the suspension and the ultimate effect. My perspective was not considered.

I would like to refer to:

Crawford and another v Suffolk Mental Health Partnership NHS Trust[2012] EWCA Civ 138 CA

Suspending Employees During Disciplinary Hearings
In Crawford v Suffolk Mental Health Partnership NHS Trust, the employer referred a matter of alleged gross misconduct that arose out of the care given to a patient, to the Police. Describing this as "little short of astonishing", Elias LJ noted:

• Hospitals in this situation, although they must be seen to act transparently, owe duties to long-serving staff;
• Being under the cloud of possible criminal proceedings is a very heavy burden;
• Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet "criminal" being applied to the conduct.

Elias LJ also doubted whether suspension had been appropriate in this case, and observed that suspension should not be a knee-jerk reaction "if it is, it will be a breach of the duty of trust and confidence. Suspended employees will frequently feel belittled and demoralized".

Nothing I did even came near the category of 'criminal'. But the Respondent has been excused for suspending me without any explanation. My suspension cannot be described as a 'knee jerk reaction' to any misconduct as all of the alleged misconduct occurred months and even up to a year prior to the suspension. Any fair minded person would see clearly that it was a 'knee jerk' reaction to my disclosures about bullying in the workplace that were made through the grievance. Allegation three is in relation to an action I took while suspended: The further disclosures I made to the correct reporting officer four months into the suspension tipped the balance and caused my dismissal. It cannot be denied. The Respondent put it in an allegation at dismissal level and upheld it. See point 2.7 below.

2.4 All the evidence points to the same conclusion: namely that 'People Management' dealt with the grievance and the disciplinary in an aggressive and vindictive manner. There is open criticism throughout all the documents for my pursuance of a grievance and for making a formal confidential disclosure. There was no irretrievable breakdown between myself and my colleagues at the point of suspension. In my witness statement I cited evidence from the Respondent's own documents that shows that this is the truth.

2.5 Members of 'People Management' decided that I would not be allowed to return to work. In the early stages of the suspension periodically I asked what was happening. I was offered a compromise agreement and then redundancy, the former of which came with a threat that I may be dismissed. Regarding redundancy, we were still recruiting in my department. SOSR was used as a smokescreen for another reason. As one of my fair minded observers commented – it was a 'cop out.' Referring to:

Leach v The Office of Communications (2012) EWCA Civ95

Unexpected difficulties are bound to crop up in the course of efforts to reconcile the statutory rights of an employee to procedural and substantive fairness and the legitimate interests of the employer. Underhill J commented, in particular, on the increasing number of cases in which an employer, as here, gives "breakdown of trust and confidence" as the reason for dismissal. The trust placed by an employer in an employee is at the core of their relationship, which can break down in a wide spectrum of circumstances. Some cases fall short of a "conduct" reason for dismissal. The legislation is clear: in order to justify dismissal the breakdown in trust must be a "substantial reason." Tribunals and courts must not dilute that requirement. "Breakdown of trust" is not a mantra that can be mouthed whenever an employer is faced with difficulties in establishing a more conventional conduct reason for dismissal.

Secondly, the ET was entitled to conclude, on the facts of the case as found by it, that the reason for the Claimant's dismissal was a "substantial reason" within s.98(1)(b). The mutual duty of trust and confidence, as developed in the case law of recent years, is an obligation at the heart of the employment relationship. I would not wish to say anything to diminish its significance. It should, however, be said that it is not a convenient label to stick on any situation, in which the employer feels let down by an employee or which the employer can use as a valid reason for dismissal whenever a conduct reason is not available or appropriate. The circumstances of dismissal differ from case to case. In order to decide the reason for dismissal and whether it is substantial and sufficient to justify dismissal the ET has to examine all the relevant circumstances. That is what the ET did with regard to the nature of the Respondent's organisation, the Claimant's role in it, the nature and source of the allegations and the efforts made by the Respondent to obtain clarification and confirmation, the responses of the Claimant, and what alternative courses of action were reasonably open to the Respondent.

In contrast to this case my case is highly significant in that the ET did not examine all the relevant circumstances, particularly the source of the allegations. There was no clarification of the allegations, and no evidence. My responses were not part of the investigation by the Respondent and then in turn by the Tribunal. This is very clear in the investigation report and in Judge Parker's reasons. Judge Parker quotes from the Respondent's statements which are just bare denials and overlooks my responses which include evidence that cannot be refuted.

Tribunals practice and Procedure Edward Jacobs: Point 4.280 – A Tribunal makes an error of law if it refuses to hear or to take account of evidence that is admissible on the issues in dispute. 4.286 Every finding for which there is no evidence is perverse.

In contrast to the case above, no alternative courses of action were considered. I was taken straight to dismissal level on euphemistic allegations that were sprung on me.

No alternatives to dismissal were offered. In the disciplinary hearing I was asked if I would want to be transferred in another area of work. I said I was happy in my job and it suited me because of my previous experience and background. I made the point in the Tribunal Hearing that I was not told 'another job or no job' and that nothing had been suggested.

2.6 It is apparent to anyone reading Judge Parker's reasons that he has made excuses for the Respondent at every point in the proceedings, overlooking essential details. These are excuses that the Respondent themselves have not put forward. In legal jargon I have read that this is 'stepping into the arena.' My fair minded observers would put this as simply 'siding with the Respondent regardless of what they did.' To give one example: In the reasons the long suspension is defended asserting that there was nothing to show that the investigation did not continue throughout the suspension period, that there were a number of bodies and persons to be interviewed and even that it took some time to arrange an occupational health appointment. I made this appointment, and it was only around one hour.

The only reason given by the Respondent for the long suspension was for me to have time to 'reflect on my behaviour.' I cited the evidence for this in the Tribunal Hearing. It is written in the Investigating Officer's Report prepared for the disciplinary.

Again my witness statement has not been considered. At point 26 I cited evidence that the decision to investigate was not made until 21st July 2009, four months after I had been suspended. I have attached the letter from Joanne Carpenter of 'People Management' that I included as evidence. She apologises for any stress this may have caused.

The fair minded observers who have considered these excuses put forward by the Tribunal have described it as utterly ridiculous, beyond belief and a disgrace to British Justice. There is clear evidence that cannot be disputed. No reasonable tribunal would reach such a decision.

2.7 It is clear that if I caused the breakdown, it was by making disclosures under the Respondent's whistle blowing policy. This makes my dismissal automatically unfair. The third allegation makes this blatantly clear: the accusation that I : 'Created an intimidating, hostile or humiliating working environment by pursuing a grievance beyond the final stage of the grievance procedure' was referring to the confidential disclosure I made under the Respondent's own 'whistle blowing' policy. This was confirmed by the Reporting Officer, Mrs Hewitt in the disciplinary hearing. It is in the notes taken at the hearing. Until this point I did not know what the allegation meant. It cannot be true. It was my expectation that the disclosure would be kept confidential and investigated. I was reporting injustice and bullying in the workplace. I had every right to report that the recommendation from the grievance had not been followed, rendering the whole process a sham, and that I had been suspended for nearly four months without knowing why.

Mrs Hewitt victimised me for making this disclosure. Even if I had been mistaken it should not have been turned against me and used to dismiss me.

Section 47B provides, so far as is material:

"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

This is the only allegation that specifies that the relationship was soured by my actions. Mrs Hewitt is on record in their own notes as saying it was not nice for my managers to have their names in front of the the reporting officer. As 'People Management' had made the decision to ignore the recommendation for mediation, it was her name as well. This on its own demonstrates that she was not an impartial 'investigating officer.' The bitterness towards me has not been hidden. It is in the reports and witness statements. Again this illustrates that there was not a reasonable investigation as established by the precedents established in British Home Stores v Burchell, BAILII case number: [1978] UKEAT 108_78_2007

The Tribunal overlooked these basic facts that I put to them in my witness statement, in the Tribunal Hearing and in my closing statement.

2.8 This part of my story cannot be refuted, and shows that the process was not only unfair, but that I was victimised for making disclosures both through the grievance and the suspension.

2.9 In his reasons, Judge Parker claims that there are no references to any disclosures in my witness statement. This is not true. I have attached my statement with these references highlighted. In the Hearing Judge Parker refused to let me use the term 'disclosure' and corrected me saying they were 'complaints.' It is well documented that they were complaints made under the Respondent's whistle blowing policy. In this policy it clearly states that in making disclosures the actual policy does not have to be specified. The jargon is not important. There is an assurance that any employee making disclosures will be protected from retribution. I put my faith in this policy. It was not followed and there was a breach of the duty of trust and confidence that I was entitled to under my contract of employment.

2.10 In the judge's reasons it is stated that I continually claim that I was suspended and dismissed as a direct result of making disclosures and taking out a grievance and that this was not true. Then later in these reasons the point that I chose to progress a grievance is cited as the point at which I caused my own dismissal 'whether I knew it or not.' This was in the first stages of the grievance. I have shared this with many fair minded citizens and everyone has come to the conclusion that this clearly shows that the decision is contradictory and perverse. In effect the tribunal have endorsed the Respondent's victimisation of me for attempting to address bullying in the workplace. I was using the correct procedures under my contract of employment. I have been urged to ask specifically for an explanation of this part of the reasons by the fair minded observers who have shared my story. We are awaiting a response.

2.11 During the Hearing Judge Parker put it to me that choosing to pursue a grievance over mediation was inflammatory – or words to that effect. I explained to him that the funding for mediation had to be approved, that it was not definite and was expected to take some time. I put forward that a grievance, if it was carried out professionally should not be aggressive. I also reiterated a point that is in my witness statement: that I requested mediation throughout all of the procedures. Again this is evidenced in writing. It was the employer's decision to delay mediation until the grievance had been concluded. I did not agree with the grievance outcome and was entitled to progress it to the final stage. I have now had my claim dismissed for asserting that right.

2.12 The Tribunal also have overlooked the fact that mediation was recommended by all of the persons conducting the grievance and that we had all agreed and requested it. This decision was overruled by employees in 'People Management.' They put themselves above the board of three councillors and decided that mediation would not work, wholly because I had taken out a grievance. Again this is all clearly documented. They made no secret of it.

2.13 Damned if I do and damned if I don't: I have explained to my fair minded observers that if a claim is taken to a tribunal and the claimant has not exhausted the employer's internal procedures that the claimant will be deemed as 'contributing to their own dismissal.' Even if the claimant wins, the compensation can be dramatically reduced. If I had not progressed the grievance this 'Polkey' reduction would have applied to me. To any fair minded person this shows that I have been in a 'no win' situation. I have been victimised for progressing a grievance but would have been deemed to have contributed to or caused my own dismissal had I not continued with the grievance process. In my witness statement I have described the grievance process that I had to endure. My grievance was not addressed and it was used as a forum to distress and intimidate me. This is evidenced from the Respondent's own documents. 

WANTED: fair minded citizens to read my appeal

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

This means that my case is arguable.

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

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

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

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

Point One

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

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

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

Every finding for which there is no evidence is perverse.

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

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

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

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

A Tribunal makes an error of law if it refuses to hear or to take account of evidence that is admissible on the issues in dispute.

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

Autocracy rules in the 21st century - nothing has changed since Victorian days...

Point 30

Back to the complaint that was withheld from me:
At Point 30 of Judge Parker's reasons, with reference to the 'number of complaints' he states : 'Whether the numbers of settings involved were greater or smaller, these persons and bodies were clients of the respondent.' and that these 'had a significant impact upon the respondent.'
No 'significant' or detrimental impact was ever specified. I was the only one who considered a detrimental impact and looked at this from the perspective of the manager of the setting. My protest was that the one complaint that was in writing had not been investigated and that there had been no attempt to resolve it. The complaint was not specific, so there was nothing to be addressed. The client (service user) claimed that she had had better advice from my colleagues. It is in writing that I was 'itching to know' what this advice was and the recommendation from the grievance was that this should be 'explored.' I think anyone would agree that that would be fair.
 I did not ever find out where I was deemed to be lacking because I was suspended shortly after being given this information. It is important to read this letter of complaint. It starts by saying that she had only written because she was assured that it would be used in a positive way to improve the service, and that it was not a formal complaint. It seems clear that someone was urging her to write a complaint. In addition she asked for confidentiality. I am the only one who has respected this and I have not named the person.
My perspective was not considered by my ex employers or by the tribunal. In my witness statement I have sympathised with the manager and acknowledged that this had left us both in a difficult situation. It was not a fair solution to dismiss me. I have made these points clear, and cited the evidence in points 39, 40 and 60 of my witness statement. This evidence has not been considered in the judgment. The only 'siginificant' detrimental impact was in leaving this unresolved.

It is perverse that Judge Parker has chosen to escalate this complaint to such a serious allegation by repeating the Respondent's unsubstantiated claims that 'settings were saying they had lost confidence' in me. This was the only one recorded. He states that 'these were having a detrimental impact on the respondent.' There is no evidence that any other settings made such complaints, and this one had not been investigated. How do we know that there was not a complete misunderstanding? - or that she did not like the colour of my hair?
Why wasn't the 100% positive feedback I had from training and conferences taken into account, the 99% + positive feedback from all of my other visits? The positive feedback that Mrs Barton recorded in her notes in the three months she was acting as my line manager? This is all in my witness statement and the evidence is in the bundle presented to the tribunal.
I do not believe that a reasonably minded observer would see this as a fair, balanced judgment.
I have now read that it is also a 'point of law' if evidence is disregarded, but the judge refusing my appeal has not responded to this. I have had another blank refusal - no reasons given. As my astonished observers have concluded 'because he can.' That is not giving the transparency that anyone is entitled to. If these are not 'points of law' or examples of a perverse decision we have a right to have this explained. Justice should not just be done, but must be seen to be done. If a judge is going to make these decisions he has an explanatory duty.

Thank you for taking the time to read this.
It seems that my main problem is that I keep forgetting that I am a pleb and should accept being downtrodden.

Read this - you will not believe it!

You cannot please all of the people all of the time.
I asked the Respondent's witness, Mrs Saunders if, while it was commendable to have a 100% positive feedback from clients or service users, whether it was realistic. She replied , ' I don't understand the question,' then when I tried to explain it further, ' Do I have to answer that question?' and then I believe she said, 'I am not qualified to answer that question.'
During the hearing and in the judgment my detailed written evidence was not considered but the Tribunal has accepted the bland accusations and blanket statements of the Respondent as 'evidence.'
As one example, in the Tribunal Hearing I asked Mrs Saunders, the Respondent's witness about her statement in which she claims that there were 'a number of complaints.' I asked her to specify the number and what the complaints were. She was allowed to answer, ' they are in the folder/ report.' In my witness statement I responded to the two detailed in the ET3, one of which had been resolved nearly two years before the disciplinary was launched, and the other which had been withheld from me until shortly before I was excluded pending a disciplinary hearing. In July 2008 I had been told that the latter complaint had been withdrawn but it was resurrected in March 2009 as part of a bundle produced by 'People Management' for the final stage of the grievance. This had not been investigated and there were no attempts to resolve it.
During the hearing the witness then mentioned two other settings which had not been previously specified. I was not prepared for these. In the hearing Judge Parker accepted these as 'complaints'. In the Investigation Report for the disciplinary there are several paragraphs with Mrs Hewitt's interpretation of these and one short sentence citing an email message to one of the clients and my claim confirming that it had been resolved. It had. The client was of the impression that our role was to interact with the child. She had also been told that we had a specialist on behaviour management, which was untrue. A lot of our 'complaints' were based on a misconception of our role. I explained this to the manager and she accepted it. There is a record in the 'bundle' of an email from my line manager thanking me for resolving this.
Yet it has been used to sack me and to dismiss my claim in the Tribunal.
In my witness report I have indicated that I had suspicions that one of my colleagues was implicit in initiating these 'requests for another visitor.' It is reported at Point 58 of my statement - 'I asked MB to investigate two further requests for another visitor, which seemed to follow after my line manager SH had paid a visit.' This is another example of the Tribunal accepting the statements in the Investigation Report as being reliable evidence, when they clearly are not. Mrs Hewitt, the person responsible for writing the Investigation Report for the disciplinary did not include my perspective. To any reasonable person it would indicate that this was in retribution for my grievance. The WSCC policy specifically states that employees taking out a grievance will be protected from retribution.
In some of the examples Mrs Hewitt gave in her report, she had not even asked me. In other examples she made scant reference to my perspective and dismissed it with no reasons given apart from the blanket statements that the report largely consists of. In this case she wrote that I refused to accept 'culpability' for the 'complaints.' They were not specific complaints about me. Each person had requested an alternative visitor. I had not even been working directly with these people. I did nothing wrong.
I believed that in the Tribunal Hearing my submission on 'proportionality' was a strong point and did not expect Judge Parker to include these two further settings in the number which he describes in his 'reasons' as 'large.' I put it to him in the Hearing that even if they were included it made the number three out of a possible 150 to 200 settings that I had visited over the five previous years.  When I explained our brief, every client accepted this and was happy to continue working with me. This is on record.
I can't imagine that these clients would be happy that they were implicated in my dismissal and the dismissal of my claim.