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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44957
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi Ben. Ive got a reply from him... hes rather argumentative

Customer Question

Hi Ben. I've got a reply from him... he's rather argumentative im afraid... would you mind having a look?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know what would you like me to look at?
Customer: replied 3 years ago.

Hi Ben


 


It's another letter from the chap who you gave me advice for a reply to send to him earlier today? (Regarding his long letter in appeal to his dismissal, and then my reply to confirm he couldn't claim unfair dismissal). Can I send you his letter of response to this for you to suggest what I should reply with...? He seems to be hassling for a personal reply from me and I want to confirm that I don't have to give one?


 


Thanks Ben

Expert:  Ben Jones replied 3 years ago.
Yes if you can please post the letter here that would be great, thanks
Customer: replied 3 years ago.

Subject :
Addition to the appeal to the “Poor Performance and Capability Notice of Dismissal Letter”
Hi Shirley
thanks for your quick reply. The hereby to make clear that my appeal is not meant to be a request of
legal advices. The appeal, at this stage, is simply directed to the Company and I expect it to be
handled by the Company according to what provided by “THE COMPANY DISCIPLINARY
POLICY and PROCEDURE”. So please let me know when my appeal will be heard. Further
failure to comply to the disciplinary policy will be eventually considered at a second stage.
This said I was fully aware of what provided by the law for "The Unfair Dismissal and Statement of
Reasons for Dismissal (Variation of Qualifying Period) Order 2012", as I am also aware exceptions
are provided and length of service is not required in some cases. This matter will be eventually fully
investigated by professionals at the appropriate time. I understand that, for what provided by the
current regulation I have 3 months to eventually arrange a claim to a tribunal and, in that case, it
will be the tribunal to state the right to appeal or not.
Everything else stated in your letter is absolutely arguable as no current legislation allow the
company to act assuming that the disciplinary policy is only to be used as a guide, as, per in the
contract, the disciplinary rules applicable to employment are set out in the company disciplinary
policy and procedure. For the same reason no current legislation allow the company to act as
Government's general rules were just a guide. They are conveniently available on the Government
website exactly because, in the appropriate circumstances, they can carry legal weight and make the
dismissal unfair. Aside from eventual legal consequences my appeal was also meant to make you
aware of all the efforts spent in order to carry out my responsibilities, as I believe you were not
aware of most of them, and to underline how it was a really hard work for me to manage stuff in
procedures in a place where, over the years, they have not been observed, and they are still not
observed by all other members of staff, including the management and including you. The
irregularities and rough mistakes made in managing my dismissal process help me to take a
significant example of it to your attention and make the dismissal unfair beyond whatever could be
ever provided by any legislation or regulation.
So once my appeal is heard and rejected or ignored I will consider if there's grounds for any


further
legal action.

Expert:  Ben Jones replied 3 years ago.
The Government 'rules' he refers to are most certainly not law so I am not sure why he keeps referring to them. They are an advisory information published by the Government, but they do not have legal effect, they are not legislation.

Strictly speaking if you had a contractual policy you would be expected to apply it in a dismissal case but that does not mean you cannot dismiss the employee at the end of it just as you have done here. He cannot challenge the reasons for the dismissal so this will not be heard as an unfair dismissal case.

All he can do in this case is claim for wrongful dismissal, which is a dismissal in breach f contract. He would basically be claiming that the dismissal did not follow the contractual policy and as such was made in breach of contract. In this case all he can realistically expect is compensation for losses incurred as a result of your breach. This will only be some extra pay to cover any period he would have remained employed with you whilst you did carry out the correct procedure. Assuming you could have carried out the full procedure within an extra week or two, this is all he can expect to recover - pay for that time.

It is up to you whether you wish to just offer him an extra week or two's pay to get him off your back but if he is not happy with that then I still suggest you do a quick appeal just to show you have followed your own rules but then tell him that if he makes a claim, which will have no reasonable prospects of succeeding here, you will pursue him for your legal and other related costs.
Customer: replied 3 years ago.
Thank you. What do you mean by doing a quick appeal? Or how would I phrase suggesting that the correct process was not followed but if it had been it would only have taken an extra week?

With regards XXXXX XXXXX wanting specific answers from me, I presume then that I can just inform him that at this stage of the process I do not have to provide further details and he will be unable to claim unfair dismissal to try and get answers as he has been employed for less than a year?
Expert:  Ben Jones replied 3 years ago.
well carry out an appeal but don't dwell on it too much - ask him to appeal, consider his points then confirm his dismissal based on your original grounds.

Correct on the second paragraph
Customer: replied 3 years ago.
Hi Ben

Sorry its the appeal bit I'm unclear on. What does he need to do and what do I need to do? I thought his first letter was an appeal? If I just wait a bit then write back to say I've considered what you've said about the process but I was right, he's just going to keep writing back saying it was wrong.

Thank you!

Expert:  Ben Jones replied 3 years ago.
First of all check to see if he formally appealed within 5 days of the disciplinary decision - if he did not then you can say that he is too late now as the police specifically says that he must appeal within 5 days.

If he did appeal within time then you would need to hold an appeal meeting to let him tell you what his grounds of appeal are and listen to what he has to say. You only have to be there to listen to his appeal, you do not have to justify your actions or make a decision. Once he has finished just end the meeting and tell him that a decision will be sent to him within 5 days. Then send him the decision in writing telling him the dismissal is upheld and that the appeal is rejected

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44957
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

(Hi.. more than happy to leave a positive rating but I just tried and it goes straight through to leaving a tip (which I will do) and closing the question... I had to use my back button to get here to reply).


 


That's great, thank you very much. Just lastly, what would he have had to do for it to have been a formal appeal...? He wrote the really long letter stating the reasons he felt he shouldn't have been dismissed (which I now know I don't have to answer, and he won't be able to claim unfair dismissal) and also stated he felt the dismissal process hadn't been handled correctly therefore requesting his job back or compensation which I sent to you on the 13th March (he sent it within 5 days)...I presume he meant to be his formal appeal, would it count as such...?


 


Thank you


 


PS...I've realised my confusion in some of this... I thought once I dismissed him, if he appealed it would then have to go through solicitors and would end up in court... I didn't realise the appeal is just to me to reconsider!

Expert:  Ben Jones replied 3 years ago.
yes you should treat that as a formal appeal by him. The appeal is just an internal process where you are asked to go over the dismissal decision and ensure that it was done fairly and decide if it should still stand or if he should be reinstated. In your case you certainly do not have to uphold the appeal because he can't claim unfair dismissal so you are simply gong through the motions now to demonstrate that you have followed the contractual provision to cover your back
Customer: replied 3 years ago.

Hi Ben


 


Im sorry to reply again, I just want to stand the best chance of writing a reply which will make him leave me alone! Would you be able to check my reply is ok...? Please let me know if I need to start a new thread for a new payment for this.


 


In response to your letter, you have been dismissed for the reasons previously stated at your disciplinary meeting on the 8th November and in the subsequent formal notice letters. I do not need to discuss these reasons any further with you and should you wish to contest these reasons, you would need to do so by making a claim for unfair dismissal. However, as you do not have the required length of service for a tribunal to consider an unfair dismissal case, you will be unable to make a claim.


 


With regards to the dismissal process, if you feel that you were dismissed unlawfully without due notice being given then I will arrange a meeting to listen to your concerns before once again checking with a legal adviser that the meetings attended and notices given were appropriate. I will be then be able to reconfirm your dismissal and if you then decide to make a claim, which will have no reasonable prospects of succeeding, I will pursue for my legal and other related costs.

Expert:  Ben Jones replied 3 years ago.
Hi there is no need to start a new thread you can just click ion accept again at the end if you wish.

the letter is fine apart from I would change the second paragraph as follow:

With regards to the dismissal process, if you feel that you were dismissed unlawfully without due notice being given then I will arrange a meeting to listen to your concerns before once again checking with a legal adviser that the meetings attended and notices given were appropriate. If the dismissal is upheld and you then consider making a claim, which for the reasons set out above will not be allowed to proceed and will have no reasonable prospects of success, I fully reserve my right to ask the tribunal to order that you are paid any legal costs associated with defending such a claim.
Customer: replied 3 years ago.

Hi Ben


 


He's replied and he'd like a meeting and he's claiming he's bringing a trade union rep. Am I allowed to bring my husband (who is also involved in running the pub... just to sit in for my confidence, Stefano can be quite threatening... neither of us plan to say anything apart from me confirming that im listing and will check with a legal advisor) and also when I reply to give him a date for the meeting am I allowed to state how long it will be for...?


 


Thank you.

Expert:  Ben Jones replied 3 years ago.
You can bring your husband in under the reason that he is there as a note taker. You shouldn't say how long the meeting will be fore but if it becomes unreasonably long you can consider ending it unless he keeps matters relevant and succinct

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