Without prejudice letter: dismissed, reinstated on appeal and resigned
This without prejudice letter template was sent by us for our client who was suspended pending a disciplinary investigation, and then dismissed. He was reinstated when he appealed the disciplinary decision, but then he resigned and issued a claim in the Employment Tribunal for constructive dismissal, on the basis that the employer’s conduct of the disciplinary process was enough to breach the duty of mutual trust and confidence.
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[HR manager name][Employer]
Without prejudice save as to costs, and subject to contract
Re: Our client [Your name]
Dear Sir / Madam,
We have been instructed on behalf of [Your name] to write to you on a “without prejudice” basis, in relation to the employment dispute between him and your client, [Company name].
We have had sight of the following documents:
* A letter of suspension dated [Date];
* The invitation, notes, and outcome letter relating to a disciplinary hearing held on [Date], and dismissal on the same date;
* A letter informing him of the outcome of his appeal and reinstatement, dated [Date]
* Mr Parker’s ET1 claim form, and your ET3 response and Grounds of Resistance;
* Your letter to [Your name] dated [Date].
We accept that [Your name]’s employment terminated on [Date]. It is our case that he was unfairly constructively dismissed, your client having committed a number of serious breaches of the terms of the employment contract between them, culminating in its decision to reinstate [Your name] with a “stage two” warning under the management of [Name].
On [Date], [Your name] submitted an ET1 claim form. He specified the following claims:
* Unfair dismissal (including constructive dismissal);
* Notice pay; and
* Another type of claim.
For the avoidance of doubt, please be advised that [Your name] will argue that he was unfairly constructively dismissed.
It is our position that [Employer] fundamentally breached a number of the terms of its employment contract with [Your name] including:
* The duty of mutual trust and confidence;
* The duty not to act in an arbitrary or capricious manner; and
* The duty to follow fair and proper disciplinary and grievance procedures.
It is our position that from [Date], your client conducted a disciplinary investigation that was procedurally and substantively unfair. On [Date] and [Date], two surprise inspection visits were conducted at [Employer]. It is [Your name]’s case that [Name] gave an untrue account of her meetings with him on those dates; a position that he has maintained throughout the disciplinary process. It is denied that [Your name] was “invited to attend an investigatory meeting on [Date]”. He was not given any notice of this. No notes of this meeting have ever been provided to him despite his repeated requests, including by way of a Subject Access Request in July [Year], and most recently directly to the chairperson of the appeal panel on [Date].
Your Grounds of Resistance refer to accounts of witnesses, [Name] and [Name] , whose statements were used in the case against [Your name] . However no written statements were taken from these employees, and were never put to [Your name] or before the disciplinary panel. This was an unfair and unreasonable way to conduct an investigation, particularly in light of your client’s substantial size and resources, the gravity of the allegations and the seriousness of the consequences to [Your name]’s present and future employment.
It is our case that your client unreasonably delayed in conducting the investigatory proceedings. In a case in which the allegations against [Your name] were purportedly admitted by him, there is no justification for a delay of nearly four months between his suspension and the disciplinary hearing.
During the disciplinary hearing [Your name] raised a grievance against [Name] in relation to her investigation report. This was denied to him. Towards the end of that meeting, he was “given the option to revoke the grievances… and does so”. This is a wholly inappropriate way for senior managers to deal with a grievance – [Your name] was in a highly stressful and vulnerable position, at risk of losing his livelihood, and this “option” was calculated to take unfair advantage of him when he was in no position to refuse it.
Despite the failings in the investigation and the lack of statements or evidence as to mandatory procedures, the management case as presented by [Name] was accepted by the disciplinary panel. [Your name] was found guilty of admitting to serious procedural non-compliance and falsification of bank records.
These findings were overturned on appeal, by a panel which found, “no evidence that these checks had simply not been completed”. The appeal panel found no failure by [Your name] to comply with mandatory procedures, and certainly no “dishonesty” that he was accused of in his disciplinary hearing. There was also nothing in the appeal panel’s finding that [Employer] or its customers had ever been at any risk of loss by [Your name]’s conduct.
During the appeal, [Your name] again raised concerns regarding [Name]’s conduct, echoing his initial grievance. However it was brushed aside by the appeal panel, and not referred to in their outcome letter. Rather, [Your name] was returned to the management of [Name]. We are not aware of any action being taken against [Name] for her biased and unfair conduct of the investigation against him, even though a formal request was made to [Name] on [Date].
The appeal panel’s findings effectively vindicated [Your name]. His only error was a late signature to the planner on 16 April; this was not a breach of any mandatory procedure and was a fact which he always admitted and explained the reasons for, mainly lack of resources [correct?].
Despite this, his reinstatement was made conditional on his accepting a severe disciplinary sanction of a 12-month “stage 2” warning issued against him, with no further right of appeal.
After his initial dismissal on 3 September, [Your name] was invited to raise a post-employment grievance. He did so on [date?]. To date no action has been taken in relation to his grievance. This is further failure by your client to follow proper grievance procedures, and also an indicator of its total disregard for [Your name]’s employment rights.
As noted in your Grounds of Resistance, another employee,[Name], was also named by [Name] as one of the supervisors who instructed him to backdate checks. No action to date has ever been taken against [Name]. Nor was any action taken against [Name] who, on your client’s own case, had been signing off checks as completed when they hadn’t been.
The investigators, disciplinary panel and appeal panel were aware of the conduct of these employees; however they chose to investigate and discipline [Name] but not his colleagues. The disciplinary action taken against him – suspension, dismissal, and reinstatement with a stage 2 warning – was arbitrary and unjustified.
It is our position that your client conducted a wholly unfair disciplinary procedure against [Your name], culminating in unreasonable decisions by first the disciplinary then the appeal panel. Ultimately, this led to [Your name] losing trust and confidence in his employers. He could not return to a position with an unfair and unjustified stage 2 warning, with its attendant impact on his pay, bonus, holiday entitlement, and promotion prospects. Nor could he return to being managed by [Name], who had been the instigator of the entire disciplinary procedure and whose treatment of him was effectively condoned by the findings of the disciplinary and appeal panels. If he had accepted the reinstatement on the terms offered he would only be setting himself up to fail. He had no realistic choice but to continue with an alternative employment even though it meant accepting a lower salary and loss of substantial benefits such as pension, company share save scheme, and staff mortgage, as well as loss of qualifying service and its associated statutory rights.
It is difficult to over-state the stress and humiliation suffered by [Your name] who, after years of enthusiastic, loyal and impeccable service at [Employer] was treated in this arbitrary and unfair manner.
Consequently, we can identify a number of causes of action arising out of your client’s conduct towards our client. However,[Your name] has no desire to pursue with stressful and time consuming litigation if this can be avoided and has therefore instructed us, at least at this stage, to aim towards a suitable settlement.
It is our position that a settlement should reflect the basic award (by my calculation £4,176), and an element of compensation for loss of earnings and loss of statutory rights. In his present employment Mr Parker will not be able to match his earnings at [Employer] for at least 5 years; his new employers have confirmed this and can provide evidence of the same. However, if this matter can be settled speedily he will accept £7,140 loss of earnings in settlement of all his claims. (This is equivalent to the difference in his net earnings over 2.5 years.) The total amount that my client would therefore accept in settlement is £11,316. This would be subject to the withdrawal of all claims by all parties, including your client’s counter-claim.
It is our view that a greater award would be made by a Employment Tribunal. We would also seek to recover our legal costs and the costs of proceedings.
We look forward to hearing from you with any comments you may have on the above proposal in the hope that we can bring this matter to a mutually agreeable and timely conclusion.
Monaco Solicitors are happy to provide you with these letter templates and examples free of charge to aid you in your employment situation. If you would like professional legal assistance in your case, we are experts in employment law and only represent employees – never the employer.
If you would like to talk to an experienced employment solicitor about the details of your case, simply get in touch on 020 7717 5259 or apply for a apply for a free 15 minute consultation. Our lawyers will be able to assess your situation and advise how we could help you improve your settlement package.
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