My husband has a disciplinary meeting next week. Another worker claims he was rude/bullying. Since her complaint, her boss has claimed she witnessed a similar incident "about 6 months ago" but didn't do any thing about it at the time. He has received their statements, however, they have not taken a statement from his colleague who was there nor have they requested CCTV of either incident.

They are saying it could be classed as Gross Misconduct but he has not been suspended.

Can they use a statement from someone with no evidence other than her recollection of something approx 6 months ago that was not reported at the time?

Should they have asked for a statement from the other person there? Can my husband ask for this to be done before the meeting?

When have you been officially employed for two years - is it on the actual date or the day before?

For Example, if you started work for a company on 1st December 2012, is the two years up on 30th November or 1st December 2014?

I would say that the timings would be like with your insurance and run from midnight on the 1st Dec 2012 until midnight on the 30th Nov 2014 so you would have to be in employment at the end of the 30th

Even if you are being paid from 1st? This is to do with a disciplinary being held the day before the two anniversary! As in being held on 30th.

Technically you accrue two years service after 1 year and 51 weeks (in terms of the right to bring an unfair dismissal claim) as statutory notice is added on.

The exact wording of the statute states service of "not less than two years" is necessary to bring a claim.

Hi, thank you for this. Do you know if this is noted officially anywhere? My husband started work on 12/11/12 but has a disciplinary on 11/11/14 and we are trying to postpone by one day but it is difficult to find a reason they will accept.

Hi, thank you for this. Do you know if this is noted officially anywhere? My husband started work on 12/11/12 but has a disciplinary on 11/11/14 and we are trying to postpone by one day but it is difficult to find a reason they will accept.

If he is a union member he can request adjournment for a reasonable amount of time till his named rep is available

He is but only joined after the initial complaint and they have said they can't help with existing events.

S97(1) and (2) (a) and (b) Employment Rights Act 1996 which affirms S86 ERA 1996 confirms statutory notice is added on for EDT purposes.

You are an absolute star. Can I just clarify this: even if he ends up dismissed without notice, a tribunal could still be considered if it is believed his dismissal was unfair?

other thing is he would have the right to be accoumpanied by a work colleague of his choice.

try choosing one that is not available that day

That's what we are trying to do. He also works shifts and came off nights this morning, and is not back until Monday, the day before the meeting so he only has tomorrow to find someone. we are using that at as reason.

You are an absolute star. Can I just clarify this: even if he ends up dismissed without notice, a tribunal could still be considered if it is believed his dismissal was unfair?

Yes, all he needs is 1 year and 51 weeks service

We have asked to delay the meeting to allow him to speak to ACAS and union etc. But this is really useful if they refuse, so again thank you.

As I understand it, you have to go via ACAS for ET's now and they more or less make the decision if it is a valid claim.

We have asked to delay the meeting to allow him to speak to ACAS and union etc. But this is really useful if they refuse, so again thank you.

 

As I understand it, you have to go via ACAS for ET's now and they more or less make the decision if it is a valid claim.

Not quite ACAS will assist in early conciliation (it is now mandatory), but if that fails, you have to submit your own ET1 claim form.

ACAS are theoretically impartial and don't give legal advice, but you may have to find a conciliator who understands the length of service issue - apparently someone called ACAS with a discrimination claim and the conciliator refused to help because she didn't have two years service... They don't all understand the law unfortunately!!

TBH the wording on the Act is very confusing to someone not legally minded. If it goes that far, I hope the ET understand it! The person conducting the meeting is not in today and then my husband is back to work on Monday so we have no way of knowing if they will accept the delay.

I am really sorry to keep asking questions, but reading the ERA S97 it refers back to S86 (6) "This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party". Does this apply if he is dismissed for what the employer deems "gross misconduct"?

The reason we ask is the evidence is flimsy, it is one allegation with a statement but no CCTV (which would probably exonerate him) but someone else (the original persons boss and a director) has made allegations with no substantiation (no dates, times, CCTV etc), but if they go ahead and dismiss without notice, he is one day under the two year anniversary of employment.

If it was a fair dismissal for gross misconduct then no notice would be payable, meaning statutory notice does not apply. That would be the case regardless of length of service.

However, the section I referred to allows the statutory notice to be added on only for the purpose of calculating qualifying length of employment to bring a claim. It doesn't matter whether it is gross misconduct or not.

I also wouldn't worry about a legally qualified employment judge with numerous years of experience in the Tribunal not understanding the legislation.

I really do appreciate your help. We have managed to get them to postpone and an employee representative from my husbands team is going to go with him.

Hi,

Everyone has been most helpful on this page and I have yet another query.

Let me give some facts:

Firstly, the investigation into an allegation is being carried out by the person holding the disciplinary meeting, which I know should be avoided. It is a very large company, it could have been done by someone else.

The investigator has CCTV evidence which, we believe, would show the accuser is lying or, at very least, exaggerating. It has been shown to another witness whose statement corroborates my husbands story. He has confirmed it shows no wrongdoing. He was shown it to try and prove he wasn't there constantly (he went in to an adjoining room with the door open and still in view).

We have requested this CCTV but it has not been forthcoming. Also, without doubt if the CCTV showed him behaving as alleged, I would not be writing this thread now!

It is almost two months since the alleged incident. It took over 3 weeks to hold the informal meeting, two weeks from then to receive the meeting letter. We postponed it to allow us to get our case together but it is well past the 5 days stipulated in their policy. It will be exactly 8 weeks from the alleged incident till the meeting. He is accused of bullying and harassment which could be deemed gross misconduct but has not been suspended.

We have an excellent employee representative who has helped us pick them apart.

If he were to be dismissed, we would have an excellent case for unfair dismissal.

My question is related to the legality of them using uncorroborated witness statements and withholding CCTV.

Is there any legislation regarding this? It would be great to have some thing to quote!

You could ask your Husband to do s Subject Access Request including CCTV fottage dated and time XXX to XXX

Also too early for unfair dismissal plus how many years service? Less than 2 = no tribunal claim.

After dismissal the appeal process would have ot be used.

He has worked there for over two years.

We have requested the CCTV but no response. CCTV is usually deleted by now and we only know it exists from information given to us by a third party. We are waiting to see if they use information gathered by CCTV ie the other person leaving the room for a few seconds. At present it is one persons word against the other and their witness statements do not match.

We would go through the appeal and conciliation via ACAS but it is highly unlikely they will back down (the original complainant is the PA of the HR director who then got involved and has allowed unsubstantiated statements in to the hearing documents).

Get the SAR in and make them sweat over the destruction of evidence if it had been requested and destroyed.

If they have destroyed the CCTV evidence, then I would assume they wont be able to submit it as evidence !

hi ask under the data protection act for all information that they hold about you including any memos emails, and anything electronically held. This will show any statements and an audit trail of who has spoken to whom on what date and will also show any mention of a cctv.