Gross Misconduct Disciplinary

[Steely Dan Man]

First of all apologies for the length but I think the background is needed.

 

My partner has a disagreement with her employer over a term of her contract relating to the hours she is required to work devoted to a specific activity. The employer claims that in September 2003 she agreed to a new contract by default by not lodging an objection. My partner’s recollection is that staff were offered the choice of taking the new contract or staying on the old one. No information was provided about the various options and impacts and at no point was she told that by doing nothing she was accepting by default. She chose to stay on her old contract and did nothing and until February 2008, her employer continued to treat her as though she remained on the old contract. A disagreement with her line manager (over a broken verbal agreement) escalated into a dispute with HR over her contract – HR maintaining that the 2003 contract is in force, my partner believing that her previous contract remains in force. This is now subject to the employer’s grievance procedure.

 

Without warning on April 15, my partner was suspended due to “complaints about [her] behaviour” and an investigation was begun. There was no contact from or with her employer until she received the Formal Disciplinary Notice on 9 May. The only exception was a request made by her on April 21 to be allowed to continue to progress her grievance with the relevant senior HR manager. This was agreed by senior management although the senior HR manager involved did not respond to contacts until April 28 when she advised that (unknown to my partner) the disciplinary investigation and the grievance were linked and she was referring the issue of progressing the grievance back to the senior manager who had originally decided that it was appropriate to try and progress resolution during my partner’s suspension.

 

The Formal Disciplinary Notice says that the allegations are considered to be gross misconduct:

 

1) grossly inappropriate behaviour breaching acceptable standards in relation to your conduct at work demonstrated following [omitted] on 10 April 2008 and during [omitted] on 11 April 2008

 

2) subjecting colleagues and students to bullying and harassment over a period of time

 

My partner now has 5 working days to respond in writing to these allegations. A provisional date for a disciplinary hearing has been set as May 27 to be held not at my partner’s place of work but at her employer’s other location some 55 miles or a 1½ hours’ drive away. In addition, the disciplinary panel will hear her grievance at the same hearing because it is deemed to have “a causatory link” to the disciplinary matter.

 

Unfortunately, she is not in a union and initially, there are a number of things we’d like to ask for help and advice with:

 

1) Given that the charge is gross misconduct, my partner fears that if she is found guilty she will be summarily dismissed. She is not sure how she can go about defending herself. Whilst she can identify the events of April 10 and 11 and can guess what the issues are, she cannot really see how they could be classed as gross misconduct (i.e. behaviour that is so serious that it constitutes a fundamental breach of the employment contract and would make continuation of the employment relationship intolerable). Whilst we are still guessing about the specifics, she says that none of those who she thinks might have started these complaints about April 10 and 11 complained to her on the days in question and nor did line management raise any issue with her although they had plenty of opportunity to do so. I should also add that she has worked for this employer for 9½ years and until the suspension had a spotless disciplinary record.

 

2) The 2nd charge re bullying and harassment seems laughably vague after almost 4 weeks of investigation. In what is a very grey area, without further detailed information (who, what, how, when ?) how is she seriously supposed to respond to this. An accusation of bullying/harassment is a very serious one particularly where students are involved and surely to expect someone to respond to such vagueness is unreasonable ?

 

3) She has been advised by HR that all evidence and documentation that either side wishes to rely upon at the hearing must be exchanged at least 5 working days prior to it (i.e. May 20) including the names of any witnesses that they want to call. It seems that they have no intention of being more specific about the allegations prior to then. But if she does not know the specifics until she has received their evidence/documentation on May 20, the same day that she has to give them her evidence/documentation, how can she reasonably be expected to decide what she needs to gather as evidence and who she needs to call as witnesses to support her case and meet the deadline ? This seems to be unreasonable – on the deadline on May 20, management will have had 5 weeks to investigate, gather evidence and prepare a case and yet the accused effectively has no time unless the employer supplies information and clarification before May 20 ! Even if information is forthcoming this week, she still has a lot less time to prepare a defence.

 

4) We do not know what the “causatory link” is that is claimed as a pretext for hearing the grievance and disciplinary together and they will not explain it. It might be the stress that she has been under whilst trying to sort out her grievance but we cannot see how it could have caused the 2nd accusation, i.e. “bullying and harassment” over an unspecified period of time. We believe that the only real reasons they want to look at the two together is convenience for them and to take advantage of the stress of the situation to disadvantage my partner in making her cases. We believe that if she had not asked to progress the grievance during her suspension, then they would not be looking at the two together now. She will have to make her grievance case (arguably the less important of two) first and then proceed to defend herself on the disciplinary. Unless the disciplinary matters have been directly caused or contributed to by the grievance matter it does not seem fair or reasonable to use an indirect link in this manner to increase the stress of an already very difficult situation.

 

5) The location of the hearing seems designed for the convenience of the senior management involved and the travelling itself would seem only likely to add further stress that would disadvantage my partner in making her grievance and defending herself.

 

This is a highly distressing situation as my partner faces the loss of her job, career of 20 years and professional reputation and does not understand why her employer has suddenly turned on her in this manner. Admittedly, she does tend to stand up for her rights and she has started to believe that rather than come to some sort of compromise over the contract issue, the senior HR manager she has been dealing with simply wants rid of her. She is beginning to convince herself that there is no point in even trying to defend this as the accusations are so serious that even if she does not get dismissed (final written warning instead), the mud will have stuck.

Edited May 10, 2008 by Steely Dan Man

[Guest Old_andrew2018]

Hi

I really think your partner needs to get specialist advice, there are some members with HR experience who could give some pointers.

 

Regards

 

Andy

[Conniff]

A very well laid out and meticulous posting which leads me to believe you have done some research into the procedures.

 

Just in case you haven't had expert advice, this is a link to the CAB advice on your situation and may help you understand exactly what happens and what course to take.

 

Dealing with grievances, dismissal and disciplinary action at work

[Sidewinder]

I can well imagine how distressing this is for your partner. To be suddenly under threat of disciplinary action for what appears very little reason and after so many years service must seem like a real kick in the teeth.

 

I don't think for a minute that she should just throw in the towel, and if you carry on dealing with this in the manner you have started will give the best possible chance of coming through this. It does though seem that the employer is determined to see it through.

 

On Point 1, she will need to know exactly what act of Gross Misconduct she is accused of and how this relates to the Disciplinary Code. To be guilty of this she would naturally have to have broken a stated 'rule' or as you say committed an act so serious that it would be obvious that it would lead to disciplinary action. Bullying and harassment would certainly fall within the scope but in order to prepare her defence she needs to know exactly what she has done and to whom which the employer believes constitutes 'bullying'. She is perfectly entitled to see any relevant evidence, and I believe should push this point on the basis that it will not allow her adequate information to prepare for the hearing, and a bearing on whom she might call on to accompany her, or ask for a witness statement.

 

In addition to the obvious research whiich you have done, or knowledge which you already have, I would recommend a call to ACAS on Monday morning (08457 474747). Whilst they cannot lead you down a particular path of action, they can comment on whether the employer has acted reasonably in their dealings with the case to date. On the surface, whilst they do not seem to have been deficient procedurally, there is certainly some unfairness in the detail.

[Rooster-UK]

I'm going to ask another Mod who works in HR to have a look at your thread, to see if she can suggest the best course to follow.

 

She's off-line at the moment, but she'll pick up the message as soon as she logs back on, probably tomorrow.

 

Sit tight.

 

Regards, Rooster.

[Ell-enn]

Hi there, Sidewinder is quite correct in that your partner is entitled to know what she is accused of in writing and any evidence of this should be sent to her along with any notice of disciplinary hearing. She should be in receipt of this in plenty of time to prepare her defence. To simply state that she is being disciplined for gross misconduct is not enough.

 

If she does not have this information in plenty of time before the hearing then she must ask for a postponement so she can properly prepare a response to the accusation and evidence. She cannot possibly send in a defence without seeing this information first.

 

She should write a letter to HR asking for the exact reason to be given to her in writing along with any evidence on which they intend to rely. Has she been informed that she may be accompanied at the hearing?

 

Kind Regards

 

Ell-enn

[Steely Dan Man]

Thanks to everyone who has posted so far, much appreciated.

 

I am extremely concerned that the stress of having to roll both grievance and disciplinary up in one may actually make the whole process very difficult for her to execute effectively. She does suffer from stress and anxiety and presenting her grievance will be difficult enough (her case will be responded to by the senior HR manager) without then having to progress to the more serious matter of defending herself (where the senior HR manager will be present as the supporting investigating manager).

 

Can she reasonably ask for the hearing to be moved to her place of work ? I would not like to have to try and make a grievance and then immediately thereafter defend a disciplinary after 1½ hours’ travelling when the rest of the panel have just moved down the corridor from the comfort of their offices ! Given my partner's propensity to stress and anxiety, this will only make the situation even worse for her.

 

Yes, she has been advised that she can be accompanied but even that seems to be a bit of a hurdle. the Disciplinary Notice states that if she chooses to be accompanied by a colleague she must "have gained express permission from [the HR Manager] to make contact with the individual through [the HR Manager]". So do all communications with that person have to go through HR ? It then also says that she is responsible for ensuring "that [the colleague] has arranged suitable cover ... and has the approval of their line manager". How can she do that ? What is to stop a line manager (who may be a complainant) refusing permission ? Similarly, the letter of the policy says that she is responsible for arranging the attendance of any witnesses. However, under the terms of her suspension she cannot contact them, so once again does all of this have to go through HR ?

 

Re initially responding to the accusations - I understood that the purpose of allowing 5 days between the Disciplinary Notice and setting the hearing date was to allow the accused to give their side of the story in relation to the accusations. If, having received that, and taking into account the result of their own investigation, HR then decided there was an insufficient case, the matter could be dropped. However, to respond properly my partner needs more detail than that included in the Notice (which is as stated in my original post, no detail other than the dates/events and the 2nd vague accusation, nothing to identify the behaviour, etc.). Surely the employer knows that without greater detail she cannot respond properly ? By not providing sufficient detail to allow her to respond within 5 days are they not, by implication, simply pre-judging and assuming that there is a case to answer and failing to investigate properly by getting her side of the story before a hearing date is set ?

 

Re the employer's case - since in the absence of greater detail re the accusations, sight of what the employer wants to use as evidence is so vital, how can we be sure that they will produce this before the deadline for swapping documentation prior to a hearing ? Their policy simply states "all documentation (including any witness statements and the names of witnesses called by either side) that will be relied upon at the hearing, will be exchanged by both parties at least 5 working days prior to the hearing date." Surely this only obliges them to do so at the last minute if they so choose, thereby frustrating any attempt to properly defend the accusations ?

 

Re the Disciplinary Hearing - they have stated that there will be a Chair, that the management case will be presented by a member of senior line management and the senior HR manager (with whom my partner has been dealing over her grievance) will be present as the supporting investigating manager. A further HR manager will be present to advise the Chair on procedural issues, as will a note-taker. I am uncertain why the senior HR manager is needed as supporting investigating manager. Indeed, that does not appear to be allowed for in the Disciplinary Policy and Procedure.

 

Thanks for the help so far.

[Weird Al Yankovic]

Hello Steely Dan Man.

 

I'm sure you are aware that dates and procedures are all important with employment disputes.

 

Your first line of your post states the following-

 

'My partner has a disagreement with her employer over a term of her contract relating to the hours she is required to work devoted to a specific activity.'

 

Is this a formal grievance? If not, was it put in writing at all? If so, what are the dates? Could you please describe these events as best you can with significant dates?

 

What are the details of the disagreement?

 

These are very important issues.

[Steely Dan Man]

Hi Weird Al,

 

Yes, it is a formal grievance subject to the employer's grievance procedure. It has been running since February 2008 when it was first raised by my partner with her line manager who subsequently escalated it to HR in March. My partner had a meeting with the senior HR manager before Easter and has been trying to progress it since then. Basically she has got nowhere in trying to resolve the problem with the senior HR manager involved whose attitude appears to be either "accept that you are on the 2003 contract or leave". Her grievance is really that for 4½ years they acted as though she was still on the old contract (her understanding and that of a colleague in the same position) and then suddenly in February decided that she was on the 2003 contract. She requested information and documents from HR concerning the consultation that took place over introducing the new contract in 2003 but has so far received nothing from them.

 

The senior HR manager dealing with the grievance also appears to be the investigating manager for the disciplinary. Is that a correct procedure or is there a conflict of interest given that they have said there is an unexplained causatory link between the two ?

[Weird Al Yankovic]

Hello Steely Dan.

 

Thanks for the reply.

 

Ok, well a grievance was raised by your partner in February 2008 regarding a contract dispute and it is now 11th May. That could be more than three months ago. (Try and find the exact date)

 

On 15th April your partner was suspended detailing Gross Misconduct which includes alleged bullying and harassment.

 

Note, bullying and harassment can be criminal matters.

 

The employer is insisting that the grievance and disciplinary matters are actually linked, your partner being informed of this on 28th April.

 

Several very important issues are clearly evident here and I wonder what your thoughts about them are?

 

1 Why is it taking so long to resolve a fairly uncomplicated issue which is essentially what contract your partner works within?

 

2 I'd suggest the grievance procedure has not been followed by the employer.

 

3 How on earth can a contractual dispute about hours working a specific activity be at all connected with allegations that may be of a criminal nature?

 

4 Details of seemingly very serious allegations have not been fully disclosed in what could well be a disciplinary matter that has not been properly procedurally followed in the first place.

 

5 There are other side issues but the above appear to be most significant.

 

I would strongly urge you and your partner to seek legal advice as a matter of urgency. Certainly by Monday morning.

 

The allegations themself warrant this and I would not even consider a work colleague accompanying your partner to this meeting on 20th May without first receiving legal advice.

 

Indeed, I would even request a legal representative accompanying your partner to this meeting which is your right to ask.

 

I fear this is a retaliatory action by the employer and completely unlawful.

 

An initial brief from a lawyer may only be about £100 and could even be free via your home insurance policy. Check it for employment disputes.

DAS deal with this and, if covered, you can get an initial assessment by telephone first thing tomorrow morning and they will arrange representation almost immediately.

 

Good luck.

[Steely Dan Man]

Hi Weird Al,

 

"a grievance was raised by your partner in February 2008", well the dispute with her line manager started in February, the grievance date I think would be the meeting with the senior HR manager involved which was 18 March.

 

"On 15th April your partner was suspended detailing Gross Misconduct which includes alleged bullying and harassment." Actually, the suspension letter did not mention bullying/harassment just "complaints about your behaviour" and did not mention gross misconduct, these details only came in the Formal Disciplinary Notice received last Friday.

 

"1 Why is it taking so long to resolve a fairly uncomplicated issue which is essentially what contract your partner works within?" Well that one has been puzzling us for some time ! If they are so sure of their ground, i.e. that the 2003 contract is in force all they needed to do was state it formally (i.e. by letter) and outline her options. We have had some initial advice that suggests the issue is nowhere as clear cut as they are claiming. Also, we have asked for corroboratory documentation re the consultation in 2003 which has not been forthcoming yet. If I were the employer and could produce documentation that would show the employee in the wrong then I'd produce it pronto, wouldn't you ?

 

"2 I'd suggest the grievance procedure has not been followed by the employer." Well, I think they have followed it to a point. Had she not been suspended, she would have moved to the next stage which is an interview with a relevant Director. That could not happen because she was suspended and that was why she asked for permission to progress the grievance during her suspension. I think they are not acting correctly in having the same manager investigate the disciplinary and deal with the grievance. Also, they only decided the two were connected after quite a delay which seems particularly convenient because as a result of so doing they can get both considered at the same hearing, ramping up the stress on my partner at the same time.

 

"3 How on earth can a contractual dispute about hours working a specific activity be at all connected with allegations that may be of a criminal nature?" The only causatory link we can see is that she was under stress (from the grievance) and that this caused less than acceptable behaviour, albeit not gross misconduct serious, on two occasions. It cannot be linked to the vague accusation of bullying and harassment which seems to have arisen after her suspension. We have asked them to explain this.

 

"4 Details of seemingly very serious allegations have not been fully disclosed in what could well be a disciplinary matter that has not been properly procedurally followed in the first place." We have asked for full disclosure of what they are talking about in both of the accusations since only with this can she respond to them. Without a response from her on the basis of such disclosure I cannot see how they will be able to show that they carried out a proper investigation before moving to a formal disciplinary hearing as they did not get her side of the story.

 

"I would strongly urge you and your partner to seek legal advice as a matter of urgency." Do you really think this is necessary ?

 

"I would even request a legal representative accompanying your partner to this meeting which is your right to ask." Their disciplinary procedure does not state that this is a right and only states that she can be accompanied by a colleague or a staff representative. We could ask of course and see what their response is. What do you reckon ?

 

Thanks.

[Steely Dan Man]

Just to update on this:

 

Request for clarification of the allegations - HR reverted today with some information about one of the incidents although it is hard to see how the behaviour amounts to gross misconduct. The other incident has been ignored and they have said that they are not yet in a position to provide any clarification at all on the very vague and all encompassing accusation of "subjecting colleagues and students to bullying and harassment over a period of time". They will, however, provide clarification at the exchange of documents at least 5 working days before the provisional date for the disciplinary hearing ... how very nice of them.

 

Fairness and thoroughness of their investigation - I thought they were under a duty to conduct a fair and thorough investigation prior to taking action. If they do not put my partner in a position (through clarification of accusations) so that she can give her side of the story by the 5 day time limit on Thursday, are they not failing to investigate properly ? In so doing, if they then decide that a hearing is warranted, have they not just decided that there's a case to answer on the basis of evidence against my partner alone ?

 

Exchange of evidence, documents, etc. - these are to be exchanged 5 days before a hearing. Without clarification of the accusations my partner has to wait for this exchange to see exactly what they are before she can properly form her defence, decide which witnesses she needs, get witness statements, etc. But by that time it will be too late because she will be wanting to send them her docimentation, etc. after the time limit has expired. Should we point this out now and ask for a postponement now ?

 

Disciplinary Policy - it states that they will in the Formal Disciplinary Notice state "what the employee is alleged to have done” and "which rules/standards/procedures may have been broken”, yet they simply state “grossly inappropriate behaviour” without further detail and a very vague accusation re bullying and harassment. The Notice does not include sufficient detail to be classed as having done this. Similarly, it says that HR will “ensure that the employee receives the formal disciplinary notice within 5 working days of the alleged offence”. Offences on 10th and 11th April and other indeterminate dates but definitely before 15th April, notice dated 8th May, how's that comply with the policy ?

Conflict of interest - the senior HR manager with whom she has been pursuing her grievance (and getting nowhere) is also the investigating officer for the disciplinary. Is this normal or a conflict of interest ?