Submitting Grievances and Whistleblowing as a Foreign Worker

The Ambush Meeting

Submitting Grievances and Whistleblowing as a Foreign Worker – Part One

By administrative-injustice-legal-blame’ model I mean ‘investigations’ focusing on finding ‘unreasonable’ actions influenced by the negligence Bolam definition of failing and which results in un-remediated ‘injustice’.  This whole model is inherited from negligence claims and is very different and often totally contrary to the goal of finding out why harm was caused and how to prevent it.

Richard von Abendorff, Why finding ‘maladministration’ is a flawed model

It is worth mentioning that compromise agreements, at whatever level, are used widely in the NHS, the private sector and other parts of the public sector. That does not necessarily mean that someone has been stopped from speaking about patient safety, and to connect the two all the time is erroneous and wrong.

David Nicholson, The price of silence: to what extent is the NHS gagging whistleblowers?

Question:
Can a UK employer legally simultaneously apply to continue sponsoring a foreign worker on a Tier 2 SOL Visa (15 July 2013) as well as initiate disciplinary actions based on poor performance (13 June 2013)?

As a US citizen, I was sponsored for employment by a company in England whose parent company is based in Norway. The initial three-year sponsorship was ending, and I was applying for a leave to remain – or to renew my and my dependent family member visas. The company in England was in the process of renewing their sponsorship of my Tier 2 visa. The application process based on Shortage Occupation List (SOL) was not trivial nor inexpensive and required the intentional and directed involvement of company agents. The company had even engaged a legal firm specializing in Tier 2 visa sponsorship to review the documentation submitted to the UK Border Agency to facilitate a successful application process so that I could legally work in the UK. The process additionally included processing applications for my dependent wife and school aged children. Of course, as one can imagine, as a foreign worker especially, the visa application renewal process was a principal concern and interest of mine.

Unfortunately, there had been issues in the workplace for several months. These issues came to a head about a month before (13 June 2013) my leave to remain application processing and continued Tier 2 sponsorship had been approved. I had been invited to a distressing meeting on very short notice by the human resources (HR) manager, my first line supervisor, and his boss. Following this watershed event in my working life, I sent an e-mail and requested an explanation as to what had just happened from the HR Manager? I was denied all of my requests made within my e-mail to the HR Manager. Many troubling assertions were made during this meeting, and I wanted to address them head-on. Most notable of my requests was whether the meeting was compliant to the company’s policy and procedures. Given the tone and topic of the meeting, it seemed unconscionable to me that minutes were being withheld. I knew at this point that something wrong was happening to me, but I was powerless because my legal right of redress was being perverted and obstructed. I was near positive that policy and procedures and my rights under contract of employment were being breached.

What if the meeting was not compliant to the company’s policy and procedures? What was the legality of being denied constructive, correct and thorough answers to workplace questions in a timely and professional manner? Would I have been submitting a workplace grievance or blowing the whistle? At the time, I had no idea what was happening to me. I have a better idea now, years too late, through reading about topics of workplace bullying, harassment and abuse. What I had just experienced is referred to in bullying literature as an ambush meeting, a tactic often (always!) used by workplace bullies against their targets. The HR manager was intentionally obfuscating the event which he likely knew very well was neither compliant nor legal under law and employment contract. The HR manager was now misdirecting the event to become a disciplinary action rather than a grievance. But, I was a foreign worker being sponsored under Tier 2 SOL visa provisions. The employer had made legal claims regarding my competence and abilities to the UK Border Agency that allowed me to work in the UK and displace a local worker. Simply, it did not make sense that a “poor performer” could be legally employed on a Tier 2 visa. Could they? BUT, poor performance is a legitimate reason to terminate an normal resident employee in the UK. This is what the HR manager knew very well!

There are things you learn best in calm, and some in storm.

Willa Cather

In my work with the defendants, I was searching for the nature of evil and I now think I have come close to defining it. A lack of empathy. It’s the one characteristic that connects all the defendants, a genuine incapacity to feel with their fellow men.

Captain G. M. Gilbert, the Army psychologist , Nuremberg trails (1945-1949)

Can a UK employer legally simultaneously apply to continue sponsoring a foreign worker on a Tier 2 SOL Visa (15 July 2013) as well as initiate disciplinary actions based on poor performance (13 June 2013)? I had never been provided with information by the HR manager or company directors which definitively addressed these important issues constructively. I never received confirmation that company policy and procedures, as well as UK labor standards were being followed. Mind you, the bullies through HR were essentially threatening my professional reputation and livelihood during the meeting. Yet, in spite of the seriousness of the matter, I was being intentionally denied information and documentation to act on. I saw this all as unfair, unreasonable, and unprofessional. I still do. The company had challenged me to a duel, but was not allowing me to defend myself. It clearly was a violation of the company’s published Core Values and Code of Conduct. Further to this, I was a foreigner in a foreign land being treated this way, which made it all even more distressing.

These presented e-mails showed that there was a conspiracy to withhold actionable information from an employee. (This information was discovered through a Data Protection Act 1998 subject access request.) The employee had essentially been forced to leave their employment because of misrepresentations (lies) and withholding of actionable information, such as the ambush meeting minutes. Isn’t this fraud? In lieu of the minutes to the 13 June 2013 ambush meeting, a letter was written that captured many of the (unsubstantiated) claims which were made during the meeting. What was not immediately apparent at the time was that the letter had transcended the ambush meeting participants. The letter was written and signed by the manager of HR on behalf of the UK company. The UK company was directed by Norwegian parent company executives, including the CEO/President and the CFO/EVP (executive vice-president). A lawyer who worked for the UK company served as secretary. So, this lawyer essentially wrote the letter signed by the HR Manager (24 July 2013). Therefore, if there was a breach in policy, procedure, or employment and contract law, it was not only understood and approved by these company directors and secretary, but was part of a nefarious (criminal?) conspiracy. In other words, any non-compliance or breach in policy or law would have been carried out intentionally and with comprehension of any legal violations or ramifications. This would include any duplicitous information provided to UK Border Agency to affect the Tier 2 SOL visa.

As a foreign worker, the mistreatment was very distressing. At the time, I was unfamiliar with the concept of workplace bullying, mobbing, and the tactic of the ambush meeting. At the same time, I had been an employee most of my life and had a conceptual understanding of fair and legal employment practices. Prior to my work in the marine seismic survey industry, I had been employed with various entities under or contracted by the US Department of Defense (DoD). During that time I had completed management training which covered US employment laws and best practices. Work attached to the US Federal government is especially sensitive to issues that would place the US government, as an employer or contractor, in legal jeopardy. I also understood the importance of proper and justified documentation. Even though US employment is known to be at will, it did not mean that employee rights could completely be trampled on. However, in the UK my employment was bound by an employment contract which is supposed to provide more worker protections and avenues of redress. I can honestly say that I did not completely understand the performance improvement plan, except that I reasoned that it could not be put into effect unless it was backed thoroughly by documented evidence. I was confident that no such evidence or justification existed. I had never experienced HR being so involved in the evaluation of my work performance. I did not even work with the HR department and the HR Manager had no direct knowledge of my work. I remained committed to follow through on my initial instinct and challenge and respond to the propriety and merits of the Investigation into possible implementation of a performance improvement plan (PIP) with a grievance.

At this point, it’s really important that you don’t get caught up in shaming or blaming. Just answer the question and give your spouse or partner room to do to the same. You are simply noticing what aligns with your values and what doesn’t.

CaRL RICHARDS

Your relationship with your line manager may give a clue as to the real reason for the PIP. The importance of workplace relationships should not be underestimated; it is frequently the case that contention in the workplace is down to a personality clash. Many individuals who are put on a PIP can cite an underlying motive which has nothing to do with the standard of their work and more a breakdown of personalities.

Philip landau

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