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Jenny
Jenny, Solicitor
Category: Law
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Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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Can a company use disciplinary case to divest an employee his

Resolved Question:

Can a company use disciplinary case to divest an employee his monetary compensation during change in terms and conditions.
Submitted: 2 years ago.
Category: Law
Expert:  Jenny replied 2 years ago.
Hello my name is ***** ***** I am happy to help you today. Please can you explain the situation in more detail? Are you the employee in this situation?
Customer: replied 2 years ago.

Hi, I am the employee in this situation and have been with my company for over 2 years. My employer/company just changed the T&C which started in 1/9/15. Due to the new T&C left most staff £3k plus worse off. The new T&C was initiallly rejected. The company then embark on individual consultation and were making monetary offer to make staffs sign up to the new T&C. Most staff in same position as me recieved £2k plus but in my case they refused to make me any offer at my consulation meeting. After 3 weeks of the consulation meeting, the HR then sent me an offer of £1k which was below what staff that I am more senior received. I rejected the offer as I considered it less favourable and discriminatory. The HR accepted to meet me over the offer but then along the line they sneak in a disciplinary case in a bid to justify their less favorable and discriminatory offer. I then raised a grievance since non of the alleged offence where mentioned at the consulation meeting and it was not mentioned in the initial offer of £1k. the outcome of the grievance is that they did not uphold my grievance for less favorable treatment despite that the have now increaed the offer to £2k plus but still want to pursue the disciplinary case which has a potential of gross misconduct. I consider the allegation as witchhunting and retaliatory.

Expert:  Jenny replied 2 years ago.
What is the disciplinary matter about and how long have you worked there for?
Customer: replied 2 years ago.

over 2 years. Is all alleged lateness to work, possible breach of Health and safety when I had injury at work and I am pursuing compensation for that through personal injury solicitors, and removal of items.

Expert:  Jenny replied 2 years ago.
Can you tell me more about the allegation of removal of items, are they saying this is theft of company property?
Customer: replied 2 years ago.

No. That I instructed a removal contractor about doing their job. But the allegation again is worded wrongly which suggest theft

Expert:  Jenny replied 2 years ago.
Ok to answer your question if your employer contrives a disciplinary matter in order to avoid paying you in this way it amounts to a breach of trust and confidence and would be grounds to raise a grievance and potentially to resign and claim constructive dismissal. It would not amount to discrimination in a legal sense unless you were being treated differently on the basis of your age, race, religion, sex, pregnancy or disability which does not appear to be the case here.
If they have now agreed to pay you the same as everyone else but are pursuing the disicplinary still then the issue becomes whether it is reasonable to disicpline you in the first place. This depends on the nature of the allegations, the length of time it has taken for them to take action and whether it is reasonable for them to treat the allegations as ones which amount to gross misconduct. If you have evidence that this is contrived and amounts to revenge for complaining then you can put this to an employer by way of a grievance and if you are disciplined you can appeal on those grounds.
If they do dismiss you for gross misconduct then this will be evidence you can use in an unfair dismissal claim.
If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 2 years ago.

I found it discriminarory though as I am the only black person in the company after 3 black staff left following perceived hostility.

Expert:  Jenny replied 2 years ago.
Hi in that case you can add discrimination to the allegation. You had not mentioned it before so I was not aware that it was an aspect.
If you can demonstrate you suffer less favourable treatment due to your race then that will amount to discrimination and you can add this to any potential claim against the employer.
Expert:  Jenny replied 2 years ago.
Hi is there anything further you would like to know about this as I note you have not yet rated my answer which is an important part of the process?
Customer: replied 2 years ago.

Do you suggest I resign and claim constructive dismissal. And won't lead to stigmatisation

Expert:  Jenny replied 2 years ago.
Hi I would not advise resigning and claiming constructive dismissal, this should very much be a last resort.
By all means raise a grievance and see what the outcome is.
If your employment is terminated for gross misconduct then you can claim unfair dismissal.
If ultimately your grievance is unsucessful and you feel that the continued relationship is impossible then you may, at that stage, consider constructive dismissal as an option.
I would suggest you come back to me for further advise if you think that you really do have no alternative.
Customer: replied 2 years ago.

I have gone for grievance and it was not uphold but same time the admitted poor handling by HR and H&S. They made me an offer same as my peers of £2k plus for the new t&c. Then they still want to pursue the allegation and denying less favorable treatment and discrimination. I have also requested for an appeal. So how do I progress and what are my chances.

Expert:  Jenny replied 2 years ago.
Yes I understand the position. The problem with claiming constructive dismissal is that you have to put yourself out of work in order to claim and there are no guarantees in employment law that the employment tribunal will find that the treatment of the employer was so bad that you have no alternative but to resign. It is, in other words, a big risk to take.
In your position the best course of action is to go through the disciplinary process and then see if you are dismissed. If you are then it is easier to prove unfair dismissal than constructive dismissal.
If you are not dismissed then you can put this down to experience and if you continue to be treated badly you can then chose whether to resign.
Obviously it is up to you and you can resign now if you wish but I think that this is a risk.
If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 2 years ago.

Can you suggest how I should approach the appeal to the outcome of the grievance. And if the appeal is not uphold should I then progress it to employment tribunal.

Expert:  Jenny replied 2 years ago.
Have you specifically raced the race discrimination issue?
Customer: replied 2 years ago.

Yes I did before the grievance. It was when I raised the race discrimination that they came back in retaliation with hastly bundled out of field allegations to undermine my position.

Expert:  Jenny replied 2 years ago.
Well that can be classed as victimisation.
The good news from your point of view is that you can raise a race discrimination claim without leaving employment.
If they take action against you for raising the claim then you are being victimised.
You can appeal against the grievance and say that you believe you are being victimised on the basis that you raised a race discrimination allegation and that you believe that this amounts to a breach of trust and confidence and if matters are not resolved you may have no alternative but to raise a claim of discrimination and/ or resign and claim unfair dismissal.
If the appeal is unsucessful you can raise ACAS early conciliation in respect of the race discrimination action and potentially raise a claim. You will find details of the ACAS service at www.acas.org.uk
You need to contact them within 3 months of the act of discrimination.
If you have any further questions please do ask. I would be grateful if you would take the time to rate my answer before leaving the site as I am not otherwise credited for the time I have spent answering your question this morning.
I will be happy to answer your follow on questions.
Jenny and other Law Specialists are ready to help you