Disciplinary pending - please help

[mikexlr8]

Hi there - long story short -

 

I've worked for my present ermplyer for 5 years and have an excellent track record and good reputation. Several weeks ago an investigation was conducted by my new boss (who doesn't seem to want to get along with me) into something I supposedly did wrong. It basically came down to one word against the other.

 

It ended up going to a disciplinary with my area manager and he postponed it due to lack of evidence. By then everyone at work was gossiping about it and ultimetly the stress of the job coupled with this new stress led to me going to a doctor who signed me off work with depression.

 

I basically have a 100% attendance record and no previous sickness/lateness. I'm just a decent guy who comes into work and gets the job done.

 

I have been signed off over xmas and last night (9pm ish) a collegue (and friend) txt'd me and asked for my home address as work couldnt access my records as HO was closed for xmas now and they wanted to post me a letter. I obliged as I wanted to keep the lines of communication open and have been careful to follow the company absense prodcedure.

 

At some point between 12am and 9am last night a letter was hand-delivered to my house inviting me to a disciplinary hearing on Tuesday regarding the investigation that took place a few weeks ago.

 

Do I have to attend and are they right to hand deliver a letter in the early hours to my home?

 

Also in the investigation notes provided in the letter - it contained a rota and it appears that my 1st day of sickness they have recorded as "unauthorised absense" even though I rang in following the procudure and produces a sick note 3 days later.

 

Any advice would be much appreciated as I have never been in this situation before

 

Thank you

[flyingdoc]

They can deliver a letter to your house - as long as it was done quietly and without disturbance which apparently it was as you dont know the precise time of arrival.

 

I would wait for eiche to look at this - he has forgotten more about employment law than I ever knew but my opinion is that holding a disciplinary meeting while you are off sick is not right. Particularly at short notice.

[version302003]

Hi mikexlr8, Here is some info for you.

 

 

 

An employer should take great care in inviting an employee to attend a disciplinary interview when the employee is off sick. There may be risk that, in compelling the employee to attend the disciplinary hearing, his or her condition is exacerbated. The employee could then attribute the worsening of his or her condition to the employer and this could rebound in a personal injury claim. This is particularly so where the employee is absent due to a stress-related or other psychiatric illness, but could equally be so with a physical condition. There are cases, however, where an employee's condition could be assisted by the resolution of a disciplinary issue. The key is to ensure that, if a sick employee is being invited to attend a disciplinary hearing, written confirmation is obtained from a medical professional confirming the employee's fitness to attend. There may be situations where the employee is fit enough to attend, for example an employee with a bad back may be certified as fit to attend a disciplinary hearing provided that appropriate seating is arranged. However, guidance must be sought from a medical professional.

Under the statutory dismissal and disciplinary procedures, if an employee is unwell and cannot attend a disciplinary meeting, the employer should invite him or her to a meeting on an alternative date. If the employee remains unwell it may not be practicable to complete the statutory process within a reasonable period, and in these circumstances the statutory disciplinary procedure is disapplied and neither party is treated as responsible for its non-completion.

However, this does not absolve the employer from the more general need to carry out fair disciplinary procedures. Where the employee remains on long-term sick leave and is not certified by his or her doctor as being fit to attend a hearing, the employer must continue to manage the absence as sickness absence. It is only when the employee recovers, or recovers sufficiently to attend a disciplinary hearing, that the employer should proceed with the hearing.

[maroondevo52]

Hi,

 

I take it when you were invited to the first disciplinery, your name and address was on the letter.

 

Regards.

 

Scott.

[elche]

I agree with the doc as regards delivery of the letter.

 

I've been looking for a previous post which covered this specific point. Ahh here it is:

 

I do not agree that an employee such as yourself who is off from work with work-related stress can be forced to attend any work related meeting.

 

Provided you have complied with your employer's absence notification procedures, which it appears you have, then you have discharged your responsibilities as an employee in this respect.

 

Whilst your employer could of course 'request' that you attend a meeting, you are not obliged to attend.

 

Although, if your absence continues long-term it could be advantageous to attend meetings if a medical capability procedure is invoked, if such a meeting were arranged the invite letter would explain this was the purpose.

 

Any disciplinary action taken as a result of a failure to attend a meeting when you are certified as sick would almost certainly be ruled unfair.

 

http://www.consumeractiongroup.co.uk/forum/employment-problems/163978-do-i-have-attend.html

 

You have over 5 years service so try not to worry too much.

 

I personally would send a RD letter or traceable e-mail -

 

explaining that the date for the hearing has been fixed for a date when you are covered by a sick note. Perhaps this fact was overlooked by them? You do not consider it a reasonable mgm't instruction to attend a DH when covered by a sick note and you would like to re-arrange for a time when you are well - but obviously you don't know when that will be yet.

When the meeting does happen, stay calm, prepare a defence, ensure any minutes are accurate and remember you have the right to be accompanied by a TU rep or work colleague.

 

Hope this helps

 

Che

[mikexlr8]

Thank you all for your comments very much appreciated.

[skonk]

When the meeting does happen, stay calm, prepare a defence, ensure any minutes are accurate and remember you have the right to be accompanied by a TU rep or work colleague.

 

 

Che

 

Totally agree with this statement. A few years back, I was in the same position, but I was absent through severe gout in both ankles and couldn't walk. They wanted me to attend a disciplinary on a day that I was still off and covered by a sick note with. It was for unauthorised absence, failure to phone work personally. At the time, I did not have a mobile, was in so much pain I couldn't walk down the stairs, and didn't have a cordless phone, so my girlfriend phoned for me. I asked for the disciplinary to be arranged for when i returned to work, and they begrudgingly did.

 

At the disciplinary, I took in all ten items of my medication, showed them each one, explained what they were for and how the side effects affected me. As for not phoning personally, I took the staff handbook in, and quoted page 7, paragraph 2 that, if you are physically unable to make the call, a family member or your partner can make it for you on your behalf.

 

As for the unaurorised absence, I told them it was, as they were informed on the day I was off, and a sick note was brought in the same day. I also stated the handbook and said it clearlty says that on a member of staffs return to work from illness, they must attend a back to work interview with management, to see how their well being is, and whether there could be a recurrence of the illness, and they had never doen this, and if they had done, they would've known that I suffer from gout badly, and it was noted on my application form when I applied for the job. Needless to say, they were shocked I followed their procedure in the handbook, and the faces on the two managers were a picture!!

 

Sorry to go on and hijack this post, but I just wanted to agree with the point about building a case and staying calm.

 

Hope it gets sorted for you....

 

edit: I must also say that I receviced absolutely nothing from the disciplinary!! The person i took in with me said it was the best thing he'd ever seen, and no one had stood up to them like that!

Edited December 21, 2008 by skonk

[mikexlr8]

Disciplinary Hearing Today - 1st & Final, Demotion and Pay Cut

 

Hi, I have worked for my company for 5 years. I had a disciplinary hearing today to answer three allegations of gross misconduct. I feel happy that that the meeting was conducted in a fair and reasonable manner.

 

Basically I probably did deserve to be there, but just for one allegation which I openly admitted and held my hands up to - a poor error of judgement on my part

 

The other two allegations are totally false and pretty much a witch hunt - I feel - that could put a strong enough case together to lead to my dismissal. Of the other two allegations they dismissed one based on my evidence but the other they said I “likely did it” even though there is no proof and it was my word vs. another colleague. As noted I’ve worked for the company for 5 years and have a good reputation and had never been in trouble before. So they found me guilty of doing something I didn’t based on the word that a colleague (who has worked for the company 10 months) said I did it. Basically a case of one persons word vs. another.

 

I was told that usually I would be dismissed but based on my good standing in the company and length of service they would give me the benefit of the doubt. They then said they would be issuing me with a 1st and final written warming, demoting me from a management role to a supervisory role, cutting my wage in half to reflect the demotion, and transferring me to another location effective immediately.

 

My question is can they do this, is it even legal to cut someone’s pay? I don’t mind the change of location but I am iffy about the demotion considering a first offence and a pay cut??

 

Also I have 5 holiday days left to take as a manger but a demotion would mean me started fresh pro-rata. Am I still entitled to my holidays?

 

I feel the company is just going all out to cut their operating costs in these uncertain times. Obviously I receive all the paperwork in due course and I have 7 days to appeal from when I receive this paperwork.

 

Off the record they also advised me NOT to appeal as the outcome may be overturned and I could be dismissed!!??

[p_cas]

Can you say what the gross misconduct actually was?

[mikexlr8]

Yes - I work at a manager for a pub chain. Most of our food is delivered frozen and when we defrost an item we apply what we call a day dot to indicate it's shelf life once defrosted. I took some bread out of the freezer on a Monday (weeks ago in November) and applied a Tuesday 'day dot'. The company guidelines for bread is that we apply 3 days (which inc the day you take it out) so in fact the day dot should have been a Wednesday. On the Tuesday I realized my mistake and peeled off the day dots and put the correct date on - Wednesday. Somebody witnessed this and reported me so I ended up where I am today.

 

It's regarded as gross misconduct to change or modify day dots. I didn't really get on very well with my general manager so I think she used this as an excuse to attempt to get rid of me.

 

I have never done this before, nor have ever been in any trouble in my 5 years working for the company. I admitted changing the date in my DH and explained the mitigating circumstances. They said I was in breech of food safety laws and questioned my suitability for my job role.

 

As I explained before up until this point I'd had an excellent track record.

 

I feel that I've been treated very harshly as my pay has basically been cut in half - which is going to lead me to search for another job as I can't live on a virtual minimum wage job.

[mikexlr8]

Just wondered if anyone had any thoughts yet? Also, I was told that since I was being transferred to another site that somebody would be in touch with me to give me details. Nobody has in the past 3 days and I'm supposedly due back in work tomorrow. They have two telephone numbers to contact me on and my home address.

 

If demoted shouldn't they be asking to sign a new contract and issue me with a new job description etc..? Surely if they deley this they would have to pay me under the current terms of my contract?

 

Thanks

[mikexlr8]

Also just to add to this when I go back to work I believe the intention is that they would ask me to sign a new contract stating a change of terms & conds.

 

Am I right in thinking that since I don't agree with the outcome of the DH I don't have to sign a new contract.

 

Could I say I'm happy to work today but if you're saying I cant until I sign a new contract then that's you're choice, not mine? And then ask them to put it in writing that THEY are refusing to let me work?

[mikexlr8]

Even more info - I've been told today by my area manager that the only posistion available to me in apx 90 miles away which would be a 2 hr commute - and I couldnt do that as the pay cut doesnt allow me to run a car any more.

 

Is this virtually constructive dismissal - as he seems to be trying to squeeze me out???

[letterman]

OK fist the change of location:

I think you need to check to see if you have a mobility clause in your contract of employment, if you do they can move you but it must be conducted reasonably.

 

You may want to have a read here Disclaw Publishing - Employment Law, unfair dismissal, redundancy pay

 

Here is an extract from info I found:

Mobility

 

Although the employer is required to state the employee's usual place of work in the section 1 statement, employers often include a mobility clause in an employee's contract of employment in addition to stating the place where the employee is usually based, to give an employer flexibility to move its workforce between different locations. To be enforceable, such a clause needs to be clear and unambiguous and to cover the particular move envisaged. In any dispute as to whether or not a mobility clause covers a particular situation, any ambiguity would be construed against the party who drafted the contract.

There is also case law to suggest that it is part of the implied duty of trust and confidence that an employer should not attempt to enforce a mobility clause in such a way as to prevent an employee from complying with his contractual obligations.

 

If you do have a mobility clause in your contract I would have a Google (Google is your friend ) and see what you can find. They certainly would have to give you reasonable notice to relocate so far away.

 

Now the demotion:

No way I can see they can do this it would be a breach of the implied term of mutual trust and confidence that exists between employer and employee and you can take action against them for breach of contract.

Read through this then begin your Google search for further advice:

Demotion Clause - Contracts - Employment documents - Tips & Advice Personnel Plus

 

Good luck, P.S I deal with pub co's all the time, dont ya just love em.

Edited January 16, 2009 by letterman

[mikexlr8]

many thanks for the response - there is a mobility clause in which they could move an emplyee to suit the needs of the business but they would have to state it in writing and give 2 weeks notice?

[mikexlr8]

Hi,

 

I had a disciplinary hearing last Wednesday and was told the outcome verbally but I am still waiting for written confirmation. I intend to appeal the outcome. The problem is the verbal outcome stipulated that I transfer to another location - which I was told by the senior manager holding the hearing would be across town. My manager on Friday then told me over the phone that there wasn’t a position across town and the only job he had for me was in a town - which is 100 miles away-seriously! I think he’s hoping I just get angry and resign!

 

I sent the company HO the following email (see below) on Monday morning but still haven’t received a response.

 

The problem is I don’t have a place to work as I wasn’t sacked and the managers are conflicting as to where I should be working? The outcome also noted I would be demoted but I don’t agree with the demotion or to a change of terms in my work contract. Can they just sack me then?

 

Any ideas?

 

Thank you

 

***************

 

Re: Disciplinary Hearing 14.01.2009 at ??????????????

 

 

Dear ??????,

 

Further to our meeting I am unclear of the outcome.

 

I have been using my holiday days owing whilst I have been awaiting written confirmation of your decision.

 

Please can you confirm in writing only the decision of the hearing. This should be emailed to ?????

 

I look forward to hearing from you.

 

***************

[godpikachu]

well, they should provide you with a written outcome, and the transcript of the meeting as standard.

 

as for them moving you to a new place of work 100 miles away, this is totally out of line unless they are willing to assist you with relocation.

 

give ACAS a ring and have a quick chat with them about it, as if they sack you for not being able to work 100 miles away from home you can got to employment tribunal as in effect this, coupled with the fact that they arent willing ot give you a written outcome of your hearing could be classed as constructive dismissal.

[mikexlr8]

Thanks still no reply - I guess they can't decide what the outcome is or they are running it by their legal dept.

[p_cas]

I think it would be useful to know why you were being disciplined and why you were having to be moved away to another location before making a judgment as to whether this was reasonable or not.

[LilyLou]

Were you suspended pending the outcome of the meeting? Does your contract state whether you should be on full pay?

[mikexlr8]

No the outcome was - 1st & final plus demotion plus a transfer across town - verbally - not received written conf and my AM tells me that there isn't a position across town but one 100 miles away?

[mikexlr8]

Still no respojnse - do you think I should ring up and request the paperwork? Do they have a legal responsibility to produce it to be valid?

[godpikachu]

yes they do have a responsibility to provide it to you, so i would write to them requesting it, something like this.

 

 

Dear sir or madam.

 

Following on from my disciplinary meeting on (date), i am yet to recieve a written copy of the outcome, along with a copy of the notes made at said meeting.

This has been requested from you (x) times now, and you are obliged to provide me with a copy of it on request, as i require these documents for my records.

I plan to appeal the decision made at the hearing, and this information will be required for the appeal process, and as i am sure you are aware this is a perfectly reasonable request under the data protection act and failure to provide me with said information is actually a criminal offence.

 

I expect to recieve the documents by return post within 7 days of this notice.

 

 

It wouls also help if you told us what it was you were being disciplined for, as if you go to a tribunal then they will need to know the details as well, and we cant really advise you if we dont have all the facts.

[mikexlr8]

http://www.consumeractiongroup.co.uk/forum/employment-problems/177715-disciplinary-hearing-today-1st.html

[godpikachu]

can a mod merge these 2 threads because they relate to the same thing.

 

 

anyways, from looking through that, they dont have ny evidence to prove youve done wrong, correct?

 

if so, then APPEAL NOW, if they dismiss you, then you take them to employment tribunal, as it seems that they will have just arbirtarilly dismissed you because they want rid of you.