Survivors’ Guide to Being Fired

Featured image – Tools for Survival after Dismissal – Image by Pexels from Pixabay

In October 2024, 3 of my friends in their 50s all got turfed out of their jobs on allegations of ‘gross misconduct’, which it turns out is what must be found to fire someone on the spot. Firstly, they cannot claim unfair dismissal unless they can show there was discrimination involved or if they are a whistleblower and have been treated unfavourably for actions to protect someone else.

Here is the timeline checklist from dismissal through to Tribunal.

• Days 1-7 – Appeal – usually within a week of dismissal
• Grievance – (no time limit) This is a letter supported by evidence sent to your employer’s HR, manager, CEO or someone who could investigate your dismissal who wasn’t directly involved.
• Subject Access Request – By searching for your employer’s Privacy Policy, you can find who is their Data Protection Officer to email asking for your employee file and emails mentioning your name. to do this, you will need proof of ID (passport/Drivers Licence) and Proof of address (bill, council tax, TV licence). This is done quickly and simply via the form on the ICO website linked above.
• 3 months minus 1 day from dismissal – ACAS Early Conciliation – within 3 months minus a day (ie dismissed on 14 October, submit ACAS Early Conciliation Form by 13th January). This process takes 4-6 weeks and a certificate is issued automatically after a month of filing with ACAS
• 1 Month minus 1 day from ACAS Certificate – Tribunal Claim – The Government website has the form to fill and an offline version can be downloaded here (scroll down to a downloadable form).

After their dismissals, all 3 friends were in shock and I remember the feeling from when I was turfed out of jobs in 2006 and 2008 because I couldn’t shift tasks between selling and admin. This made me stressed and disorientated. I had dyspraxia detected in 2006, but I had no idea what reasonable adjustments to request in a job I took in 2008, which started with all the fanfares of glory and ended under a heaving mess of under-reported admin.

Your Appeal

The main part of an appeal is to show you want your job back and wanted to keep working there. Within a week of being fired, the employer will invite you to appeal. With hindsight, this could just be a short note to cite:

• Your wish to appeal
• Reason why: i.e. disproportionate response, failure to follow due procedure, lack of reasonable belief, unfavourble treatment, failure to make reasonable adjustments.
• Examples of reasonable adjustments they could have identified and made to support you in your role and how they failed to make these.
• Clear examples citing when you believe these happened.
• Requests for documents to evidence what you believe happened such as emails to prepare for your appeal.

It’s quite likely your email account will be shut down on the day of your dismissal, which means accessing information to use for your appeal within a week will be tricky. Due process dictates that they provide evidence for the allegations they make against you in an informal meeting or investigation before you are dismissed.

What happened?

While preparing for your appeal, it is good to note down exactly what happened from a cold, objective, businesslike point of view. Create a timeline of what happened. From there you could cite some evidence to back up your appeal.

It is very likely the dismissal will be heavily biased. This all counts in your favour, because if you provide an objective, businesslike viewpoint, it is likely the evidence will stack up.

Evidence checklist:

• Have they re-advertised your job? Was your dismissal pre-meditated to recruit someone with different skills to replace you? Check Indeed, Glassdoor, their Facebook page, the careers section on their website.
• Examples where you raised a concern or reported something, which was ignored. For e.g. emails discussing this where your concerns are mentioned.
• Were you scapegoated? Had colleagues made errors, which contributed to your downfall and not theirs?
• Victimisation: Had you previously raised concerns about someone involved in allegations against you?

You have a right to be accompanied to your appeal by a work colleague or a union rep. Helpful, not? In a tribunal, you can call colleagues as witnesses but there is likely to be a conflict of interest as they must defend their employer or, possibly, breach their terms of employment contract. Are you member of a union? The short timeframe for appeals often eliminates union reps from being available in time.

However, you can ask to be accompanied by someone else as a reasonable adjustment for dyslexia. The Equality Act protects you all the way from the selection process, recruitment, employment, disciplinary, dismissal, appeal, grievance and tribunal processes. If you didn’t formally disclose dyslexia to your employer and request specific reasonable adjustments, you can still do this in your appeal.

There is a marked difference between formally following a procedure and due process. One is a box ticking exercise; Gathered evidence such as complaint letters, colleagues testimonies etc – tick – calling an informal meeting – tick – dismissal on allegations of ‘gross misconduct’ – tick, it’s an inexhaustable list – invite to appeal – tick – invite them to bring a work colleague or union rep – tick – offer reasonable adjustments such as coloured paper – tick – tell them they’re not allowed to raise a grievance as they are no longer employed – tick.

By now putting on your detective’s hat and investigating allegations, events, evidence and actions yourself, it is possible to reach evidence, which is hidden during the appeal process. Anyway, after how they treated you, did you really want to work there again? This process can be fun, especially with a close friend or family to add another viewpoint.

Raising a Formal Grievance

If you write up a report of events, actions and speech surrounding events leading up to, during and after your dismissal, you can then gather evidence to support your complaint. Then gather evidence they presented during the disciplinary process, emails, your contract, terms of employment, their grievance procedure, calendar entries, job ads, maps, anything that can substantiate your claims against your employer.

There is no time limit on grievances. They do not have to respond. It could increase the remedy at tribunal if you made a grievance and they did not respond. It is your chance to put a businesslike investigation of events with evidence forward, particularly if the appeal process did not give you this opportunity.

Subject Access Requests

Particularly when you are locked out of email and online systems used by your workplace, you can request you are sent anything they hold mentioning your name (the “subject”). This could be an employee file, letters, emails and other internal communications you might not have seen. These could reveal discrimination or a pre-meditated plan to replace you, despite inviting you to appeal.

A Data Subject Access Request (DSAR) can prompt an unscrupulous employer to take your complaint against them seriously as it could provide you with evidence that you were victimised or scapegoated out of your job.

To make a DSAR:

• Search for your previous employer’s Privacy Policy
• Find the email address for their Data Protection Officer
• Fill out this form on the Information Commissioner’s Office website
• Proof – have your ID (passport or drivers licence) and Address (billl, TV Licence, Council Tax) ready as jpegs – photograph from phone to upload.
• Request your employee file and emails between your employer, clients, external partners (ie an app used), managers, colleagues and governing bodies such as the Disclosure and Barring Service

ACAS Early Conciliation

Once you have filled out the ACAS Early Conciliation form, within 3 months minus one day of your dismissal, they will allocate a volunteer conciliator to your case and email you with a case number. To correspond with ACAS, always use the subject bar with your case number and You Vs Your Previous Employer that appears in their email from case@acas.org

After an initial conversation with your ACAS case conciliator, they will approach your employer to see if they will enter early conciliation with you. ACAS will go between you for 4-6 weeks.

If an offer is made and accepted, they will draw up a COT3, which means the matter is resolved and will not go to Tribunal. The Respondent will then pay any offer of money within 21 days of the COT3 being signed.

If an agreement isn’t reached within a month of Early Conciliation, ACAS will send you a certificate, which has a reference to enter on your Tribunal Form.

Your Tribunal Claim

This must be made within a month minus 1 day from receipt of your ACAS Certificate. It is possible to use AI to create the wording of your claim. Chatgpt and Grok (On X) both remember information you provide. You will be issued a Save and Return form, which can be kept to hand easily by emailing it to yourself labelled with a clear subject bar heading.

Using AI for your Appeal, Grievance, ACAS and Tribunal wording

If you have a free Chatgpt account, there is a limit to how much memory you can have before its memory is full.

If you use X, Grok is an alternative, which works in the same way. It stores memory based on the information you provide. You can upload documents or, probably easier, paste in the parts you want analysed.

AI may offer to write a subject access request email for you, but it is better to do this directly through the ICO website.

Ideas for using AI

• Ask AI to analyse documents you have been sent, such as your disciplinary letter, appeal outcome or investigation from your employer. Once you have given it the command you want, the document you want analysed can be pasted in or included with the command “pasted within quote marks”.
• Ask AI to provide any evidence of discrimination, unfavourable treatment, lack of reasonable adjustments or acknowledgment of anything in your appeal claim.
• Ask AI to format your report into bullet points.
• Ask AI to consolidate information using bullet points to within a word limit, such as 800 words and 400 words on the ACAS Form.
• Ask AI to form the points made into a response to ACAS, grievance letter or appeal.

You’ll find AI will store information you have given it in its memory. The more objective, accurate information it has, the better it can make your case for you.

Allegations of Gross or Serious Misconduct

Gross misconduct is the only way to get rid of someone quickly, who has worked less than 2 years in their job. After 2 years, you can prove that dismissal was disproportionate or unfair, but before 2 year’s service, the way to challenge it is by finding out why they wanted to get rid of you and how they discriminated against you compared to other employees.

The real reason to get rid of you could be:

• To get someone with more experience or a different skillset
• To employ someone cheaper or who comes with an incentive
• To reduce your rights by dismissing you before 2 year’s service.
• To exclude people with certain requirements or challenges
• To add criteria to the job role

The list goes on. However, if you cannot show gross misconduct is unfair or disproportionate, you will need to show how they discriminated illegally against you. Then cannot fire someone who met the criteria when they were employed, just because they want to.

The list of gross misconduct is not to protect employees or clients, it is to protect the company when they wish to get rid of someone quickly by saying it is in their employee handbook or policy.

You need to find out why they fired you, what type of discrimination was involved and how it applied, directly or indirectly.

Why Cite Discrimination rather than Unfair or Disproportionate Dismissal?

Under the Equality Act 2010, people are protected by law against discrimination based on a set of characteristics including disability, age, gender, and race, as well as sexual orientation, religion or belief, gender alignment, marriage status, pregnancy, health, menopause.

You cannot claim for discrimination just because they didn’t like you. You need to show that if another person had done the same as you, they were treated differently based on a reasonable belief of difference between you.

If there is a campaign against you, such as bullying or victimisation after you raised a concern or grievance in the workplace, if you can cite incidents where you were repeatedly treated unfairly compared to another colleague.

Direct discrimination occurs when someone is treated less favorably than someone else in the same situation because of a protected characteristic. 

Someone without a particular protected characteristic might experience indirect discrimination. This would be where a working practice, policy or rule causes them the same disadvantage as someone with the protected characteristic.

Acas – Discrimination at Work – Indirect Discrimination

If you can show that you were treated unfavourably, bullied or victiminsed in the presence of a protected characteristic, you can use section 136 of the Equality Act 2010 to convey the Burden of Proof to the Respondent (your ex-employer).

Burden of Proof

443.This section provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act. The exception to this rule is if the proceedings relate to a criminal offence under this Act.

Government Legislation