Tuesday, July 27, 2010

Problems with boss, legal advice please?

Hi my ex husband called earlier asking for help. He said that he has been having problems at work and is facing a disciplinary. He says the reason for this was that after his new daughter was born he took some time off. The company are now saying that he was AWOL. He went into a couple of meetings with his boss where he was apparently told you used to be a lazy black bastard. My ex has recorded these conversations on his phone. Can he use these recordings if he has to go to court? They refused to take minutes of the meeting. He is in contact with the CAB and I have told him to take someone with him to any further meetings (they have no Union). Sorry if this info is a bit all over the place it was a rushed call. Any help would be greatly appreciated xProblems with boss, legal advice please?
OK. This is slightly complicated - as Chris says (above) there are two distinct issues here.


One is the issue concerning being AWOL. Fathers are entitled to paternity leave, but it is impossible to comment on this case without more evidence.


Did he take paternity leave?


Was this made clear to the employer?


How much time did he take off?


Etc.


For the company to take proper disciplinary procedures they have to follow a set procedures. If they have not provided your ex-husband with a written explanation of what they feel he has done wrong, have not formally invited him to a disciplinary meeting and have not taken minutes at this meeting, then any dismissal would automatically be deemed to be unfair at an industrial tribunal (assuming your ex has worked for the company for at least 12 months).





The racial insult is a separate issue. The key thing here is, is the 'boss' who made this insult, the top guy? If not, your ex should immediately report the incident to HR or a senior manager (the phone recording could be used as evidence). Such racial slurs would definitely constitute gross misconduct on behalf of the boss.


If the boss is the owner/top guy - then there is no-one within the company to take the appeal to. Contacting the Equal Opportunities Commission or Commission for Racial Equality would be a good idea. The main option though might be to resign and claim constructive dismissal.





By the way - it does not matter that your ex's employer may not recognise a union. This does not prevent your ex from joining one and being represented by one. I would strongly advise him to do so in future.Problems with boss, legal advice please?
Your ex-husband needs to file a claim with the EEOC for race discrimination - those tapes are evidence and can be submitted as proof. They can write him up for insubordination if he did not call him to let them know about his absence but there is no reason for what they called him. He has a good claim and needs to follow through with it. He does not need to get an attorney until the EEOC investigates and most of the time they will supply him one.
he needs a lawyer who specializes in employment...however, I do not believe he can use the records as evidence. The person he is recording would have to be aware that he/she is being recorded. I know this b/c my boss is going thru a nasty divorce and wanted to record his ex, however, he wasn't allowed to use those recording, however, he was able to use voicemails she left him b/c ';she knew she was being recorded'; Sorry to deliver the blah news...but good luck with that!
Hi Lynsey,





Assuming you are in the UK.





This is a very bad state of affairs. It appears from what you say that your ex husband is not a white person and the bosses are white.





Taking each offence in turn. An offence under section 3A(1)(a) and (b) of the Race Relations Act 1976 Discrimination by way of Harrassment.


Under the Employment Act 2002





For paternity leave you need to give notice of the intention to take paternity leave. After that period is up you can then go on Parental leave subject to certain conditions To be dismissed for taking Paternity leave is automatic unfair dismissal.





Your ex husband is doing the right thing in seeking legal advice.





These people need to be taken to task for this type of behavior, it is unacceptable. The evidence collected can be used in evidence unless a judge disqualifies it for some legal reason so keep it safe.





Good luck
he needs a lawyer, he is allowed to have leave from his job but as long as his job approves of it ahead of time. if he just vanished and didn tnotify anyone then they have groudns for termination. but if they used rascist derogitory slang thats unacceptable. he needs a lawyer who specializes in work affairs.
Well you probably have a few different issues here.


1. The AWOL issue. You have to check into FMLA but my guess is that he either didn't do it or failed to follow the rules. That might be a problem or just a symptom. A consult a lawyer.





2. The racial issue. This may or may not be a discriminatory issue. Assuming the boss is a different race there is likely to be some problems related to that. As far as recordings go you would have to contact an attourney. A big deal might be proof of who is speaking on the recording and recording quality and reproducability. No one has to take minutes and even if they do there is no reason they have to be very detailed or even correct. I assure you that no one would ever include a racial comment on meeting minutes. He should take his own notes. Having a witness may or may not be valuable depending on the credibility of the witness. He should involve HR but remember they represent management and the company but it won't hurt.





3. Past performance reviews and documentation. Has he had problems in the past? If so remember history tends to repeat itself. Employment cases often depend on who has better documentation. Document, document, document. Make sure his records are clear, objective, detailed and absolutely factually correct.





Good luck to your ex husband.
If you pour enough gas on the smoke, you will get fire. If your ex-husband took time off under FMLA (Family Leave and Medical Act) then he is protected. If he just took the time off, that might be a bigger problem.





Unless he wants to lose his job and be branded a malcontent, I would would not recommend the road he appears to be taking and that is to get his employer in trouble. That will be a very difficult path and one that could put him out of work and make it harder to get another job.





I would suggest that he take a deep breath and try to make this work and put it behind him. That way, he can look for a different job from a position of strength rather than trying to find a job while he is out of work.
Tell him to talk to a lawyer, I believe the recordings can be used as evidence!
Your Ex needs to find the company grievance/harrassement policy. If he has been 'invited' to a discipinary he should have a formal letter from HR and copies of all these already- If not he needs to have this and the time needs to be convenient within reason to him. i.e they meet at 5.30 and the last train is 5.45 is not a reasonably/convenient time.


He needs to find evidence that told/received approval of the time off (assuming that he did not just disappear! ) or a witness to the request. After the previous meeting he should have been sent a letter stating what happened in the meeting and the course of action that had been decided.


He can join a recognised union and take that person with him to the meeting. Also meet with them before hand to decide whether it is appropraite to make a counter claim before or after the meeting on race discrimation i.e. the tapes.

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