Diciplinary On Monday - Possible Dismissal - Help!!!

[ohdear66]

HELLO, I SEE THERE ARE A LOT OF EXPERTS ON HERE AND I REALLY NEED SOME ADVICE.

My partner has just started a job which involves a crb check. On the application form he put down he had had no convictions or cautions as that was what he thought. On his first day of training he disclosed to the trainer and HR that he had been arrested and edited this fact on the application. In the employers handbook it says you must disclose if you've been arrested which he only received a copy of the friday before the monday he started(If that makes sense?).
He then completed the 5 week training course and heard nothing more.
Then 2 weeks later his CRB check came back and had a caution on so he went into the office on his day off to sort it out but was told to go home and they would contact him.
He then was being called to under take normal duties (this can only be done once security cleared) for another 3 weeks without any news on the CRB incident.
Then last week he got a call to say he needed to attend an investigation and got a letter etc to do with not disclosing arrest/caution during the screening process!He attended the meeting and now has to go to a diciplinary meeting on monday which could end up as gross misconduct.
I'm desperatley trying to put his case together but need more advice.
here are my points below which i think he can argue:

1) No where on the application form does it ask if you've been arrested.
2) On receipt of the employers handbook which asks you to disclose arrests/cautions/criminal record etc he disclosed it at the first opportunity.(Read it on fri pm - disclosed mon am)
3) He has already done 5 opperational duties(when your ment to be cleared first!)
4)He didn'trealise he had a caution so therefore didn't disclose it as one but as an arrest!

Please help me or offer some advice to whether you think we've got a good case?

Holly

[Sidewinder]

Hi Holly and I am sorry that you should find yourself here in such circumstances.

Sadly I fear the worst for your partner. From the employer's perspective, if the application form asked for details of convictions or cautions and your partner answered that he hadn't any, then this will be deemed as a false statement - after all (and only playing devil's advocate here) somebody being formally cautioned should know what this entails, and should not be in any doubt as to whether they have been cautioned or not when asked later - a caution is only given on admission of guilt and as an alternative to prosecution.

It would certainly seem that to avoid any doubt whatsoever the application form (not just the handbook issued to successful candidates) should ask for convictions, cautions or arrests), but the fact will remain that he has not disclosed the caution, never mind the fact that he thought he had only been arrested and released.

At the end of the day, without 12 months service, your partner has only limited employment rights - and those due to him under the terms of his contract - does the contract or job offer set any conditions relating to the CRB, or the fact that his employment would not be confirmed until the CRB had been received and checked? In the absence of any contractual term, they are free to terminate his employment for whatever reason and there is little redress available unless a case for discrimination can be made.

Your partner's best option may be to make a plea for leniency based on the fact that he was unaware of the caution, and declared the arrest at the earliest opportunity once he received a document to say that this might be relevant. Was the caution issued for something which might be relevant to the nature of the employment, even tenuously? How long ago was it issued and is it something which a reasonable person may see as having been foolish rather than criminal?

Would they be willing to extend him a period of probation involving extra supervision or frequent appraisals? Have they been happy with the duties which he has completed so far?

Sadly I think that he is really at their mercy here and relying on them being willing (or able under a Code of Practice) to give him a chance to prove himself, although I wouldn't hold out a lot of hope. Sadly CRBs are all too often used as a straight yes or no tool and many people are caught out unneccessarily and denied employment for relatively minor and (in some cases) irrelevant misdemeanours.

[ohdear66]

Thanks for your reply.
It doesn't state that it must be a clear crb or conditions just that they need it back within 12 weeks.It was for common assault back in feb 2005 (Fight in the street - him and his friend got jumped by 10 blokes).
The reason he did not realise he was cautioned was that he didn't get any paperwork and he started work for the HM prison service after the incident happend!
Yes they have been happy with his duties but he shouldn't of been doing them at all (they are breaking there own terms and conditions - breach of security!) . Could we use that against them?
Thats a good point regarding asking for frequent appraisals etc.
do you really think they have already made their minds up?Its such a shame as he would be so damn good at this job.
Also do you think they will look at his glowing Prison Service record as this was employment in a similar line of work after the arrest?
Holly

[Sidewinder]

Originally Posted by ohdear66

Thanks for your reply.
It doesn't state that it must be a clear crb or conditions just that they need it back within 12 weeks.It was for common assault back in feb 2005 (Fight in the street - him and his friend got jumped by 10 blokes).
The reason he did not realise he was cautioned was that he didn't get any paperwork and he started work for the HM prison service after the incident happend!
Yes they have been happy with his duties but he shouldn't of been doing them at all (they are breaking there own terms and conditions - breach of security!) . Could we use that against them?
Thats a good point regarding asking for frequent appraisals etc.
do you really think they have already made their minds up?Its such a shame as he would be so damn good at this job.
Also do you think they will look at his glowing Prison Service record as this was employment in a similar line of work after the arrest?
Holly

As stated before, I think that if he is able to make a sufficiently convincing case, hopefully somebody will be able to take a common sense approach to this and will be able to take all of the information into account.

• The caution was issued for defending himself after being set upon by a gang of people. 'Unfortunately' he injured one in the process, but certainly didn't instigate the attack, nor is be nature violent.
• It was not clear to him that he had been given an official caution, therefore he gave what he believed to be an honest answer on the application form. When it became clear that an 'arrest' should be disclosed, he did so immediately.
• The Prison Service didn't penalise him for this event, and in fact were more than happy with his work, hence that he has left with an exemplary work record.
• He has, to date, proved to be a good member of the team with his new employer and believes that they have no cause to say otherwise.
• Should they have expected him to undertake normal duties prior to receiving the CRB?
• He is more than happy to be subjected to any level of monitoring or supervision if that permits him to remain in employment.
• He asks that the employer accepts that he did not attempt to mislead, but gave what he genuinely believed to be an honest answer, and hopes that they are able to consider him worthy of employment on merit despite having a prior caution.

[ohdear66]

Thanks for your help, i feel like i've been researching day and night just to make sure i have covered every angle possible to help him. Do you think they have already made their mind up and are just going through the motions?and do many people get off the gross misconduct allegation or is it pretty much thats what is going to happen?
Holly

[ohdear66]

well my partners hearing was today and even thought new evidence came to light (the date contract rec'd and date disclosed incident) they still decided to sack him. We are going to appeal but need as much help as possible so we can try and win this case? What should i write on the appeal request letter as i want to send it off today not wait for them to send the dismissal letter?What are the best things to say atan appeal hearing in order to try to change their minds?
holly

[ohdear66]

The notes have come throught from my partners disciplinary with something on that i find unfair. it states: 1202pm we are now going to adjourn to make our decision by taking into account everything you have told us,all paper evidence(lots of pages/statements) and obtain other advice. 1205pm decision made. how could they possibly do this in 3mins?They are ment to consider other sanctions as well. Does this sound wrong?

[ohdear66]

Anyone?

[ohdear66]

WELL THIS JUST GETS BETTER AND BETTER!Bearing in mind that my partner was dismissed on monday 7th they called him at 7.47am to do some immigration flights tomorrow!What planet are they on?Surely they should be aware if someone is no longer employed!what a breach of security.They have sacked him because they think he's not honest(not disclosing caution on app form) but surely this proves he is otherwise he would of agreed to the flights!