Disciplinary Hearing Tomorrow

[kane3000]

Ok. This is really for my partner who is about to face a firing squad tomorrow.

 

She has been accused of a copyright issue that has meant she has been suspended for 12 days to date. Initially it was 10 but due to extensions this is where we are.

 

It involved a director who seems to have instigated this procedure but my partner has since raised a grievance against her in the past 12 days - so there is evidence the two are linked (there were witnesses that can be called if needs be to confirm that this director said there will be a disciplinary if something like this happens again). The grievance is also related due to how she talked to my partner in an aggressive manner in front of other members of staff.

 

There was a first hearing set in the first week but due to the person chairing it being a close friend of the director, we asked for it to be changed. They postponed it when the grievance was raised and wanted her to come in to sort this first. My partner was not sure if she wanted to go formal, so went in for an informal chat with a view to making up her mind yesterday. Before she had the opportunity to respond yesterday, she received a letter yesterday via courier confirming her disciplinary meeting for this Wednesday. So now she has a disciplinary before her grievance which we know is not what ACAS advice.

 

Basically she is crapping herself. This is one of the largest companies in the UK and I don't feel she is up to all this - I know she can go to the docs and perhaps get written off but they can still proceed with the disciplinary.

 

I drafted a letter for her yesterday which she sent early morning, opening the door to talk about 'other avenues' available for both parties (ie a compromise agreement) they have got back in contact today to reject this and proceed with the disciplinary and grievance.

 

Can any of this work in her favour should it go to a tribunal - she is likely to be dismissed tomorrow (others have gone through the same and never returned to work) and is pretty much up for summary dismissal.

Edited July 7, 2009 by kane3000

[heliosuk]

They have to hear the grievance proceedings first but can move on to the disciplinary straight away. Very unfair and unprofessional. You could try to lodge an appeal staright away before it starts or even raise another grievance on the fact that the way it has been handled. You should state this before the start and request a one week adjournment in which they should clarify the position and process. This should buy you time.

 

I'm not surprised the compromise agreement was rejected, it's not a compromise agreement but a request to seek other avenues to sort out the difference of opinion. The fact it was rejected, even if it goes further, will act in your favour.

 

Your partner should take in a trusted friend to just observe if need be but better a Union rep.

 

Take a brave pill and go in but make sure it wears off 10 mins in ( though I don't think it will be necessary) and say I can't continue at the moment and then it has to be adjourned.

 

This gives you time to asses the situation and go in fully prepared.

 

I'm surprised you've left it so long to ask for assistance.

 

Join a union at the very least. You will get representation very quickly and is the best form of employment insurance you can get!!!

[kane3000]

Thanks for the response.

 

The thing is, ACAS have said that they can do the disciplinary before the grievance but they advise employers that it's best not to.

 

ACAS have been our port of call throughout the past couple of weeks and given some great info.

 

With regards to the letter that we sent, I was vague in terms of addressing a comprimise agreement as I did not want to commit in black and white that resignation was an option right now - I wanted to create a meeting where that could be discussed. Perhaps I was too vague by mention 'other avenues' etc but as you say, long term it could work in her favour anyway.

 

She is thinking of resigning tomorrow tbh. The key point for her is having a clean record and moving on from this asap - so at least she would gain some control if she can resign and come to an agreement with them but it depends on their attitude. Also, we are checking with ACAS in the morning about a very key point - if she resigns we know they can still proceed with the disciplinary but can they still mark her record with a dismissal. I don't think they can as if she has resigned then I can't see how a dismissal can be issued but she is not so sure. If ACAS confirm that they can't, then she is going to resign. We know that she has a good case etc but she really isn't up to going through this, a greivance and potentially an ET as well. She would take a disciplinary mark (warning etc) on her record but if she can avoid a dismissal on her record, then she will resign and try to move on.

 

That may seem a little weak to some but this really has put her through the mill already, let alone want a few more months (if not longer) of this would do to her.

[kane3000]

Well from what I've seen on the net (not always the most reliable source) she can resign of course, they can proceed with disciplinary but I've read two things -

 

They can issue a dismissal and this overrides the resignation

or

They will put on her reference that she resigned pending a disciplinary.

 

Tbh, I've seen more evidence of the second option rather than the first. The further question is can she resign with immediate affect stating that she feels her position has become untenable - ie, she feels no other option than to resign as she has a pending grievance against her director and cannot continue to work with her should she not be dismissed and of course the moral of having her whole department pretty much aware of what has been going on for the past 2 weeks (of course, officially they shouldn't know this but we all know word gets round).

 

I've read that if you resign with immediate affect that this screws your chances of getting a good reference as you have not given a fair warning for your leaving (not legally obiliged to - is that right?) and they can play hard ball with you for that.

 

Again, these are things to ask ACAS first thing in the morning.

[Liz Southern]

Hi,

 

Tell her to resign and go sick for the week, or entire notice period, due to "stress". But you MUST get a gp's certificate to back this up. An urgent appointment and a flood of tears in the surgery will do it. You can drop the sick note in for her and they can do NOTHING about it.

 

Regards

Your friendly employer,

Liz

[Liz Southern]

oh, and the speed at which they are proceeding is meant to make you give up, but remember that she doesn't have to decide about an employment tribunal straight away. She can do this later if she wants. However, her next employer won't like it. As for her reference, her current employer has to be careful. They're not allowed to say anything bad.

bye

Liz

Edited July 8, 2009 by Liz Southern
spelling

[kane3000]

Well in all honesty that has put her under a lot of stress and has really taken its toll on her.

 

We thought about going docs and getting a note etc but i know they can still proceed with the disciplinary hearing without her. That could go against them longterm but if the hearing is tomorrow and she wants to resign then, what would going sick for the duration of her notice do for her?

 

More than likely they would put her on gardening leave anyway if they take the resignation/comprimise and won't allow her to actually work the notice.

 

It's more about protecting her record longterm more than anything else. The ironic thing is, she has a solid case against them but the record at this company is if you are put on suspension, no one really comes back after that. She just wants an end to this stress and wants to protect her record for a next job - but I'm beginning to doubt that will be possible.

[Liz Southern]

I don't know what time she has to go in to work or to the meeting tomorrow, but if she doesn't turn up and you send in a sick note, she can't be sacked while she's off sick. Don't know what her company's policy is on sick pay. A sick note during her notice period would just mean she wouldn't have to go back in and face them - same if she has garden leave. An employer cannot proceed with a disciplinary hearing if a sick note has been delivered before the time you've been told for the start of the meeting.

 

Basically, if she doesn't want to fight, look at it this way, they will always be sh**ts and her next job might be a really nice one.

Regards

Liz

[bs0lth]

Can you get to see the Doctor and get a sick note before the hearing tomorrow morning. If you phone them and tell them that your partner is not well enough to attend the meeting then they will have to adjourn it. Getting the sick note should at least give you a little bit more time to get everything you need in place...

 

I actually did this the day before a disciplinary, it meant that I got the time I needed to get evidence together, and I ended up moving departments after the head of HR agreed with what was going on. He recommended that I moved for a while.

 

Good luck what ever happens.

 

lynne

[kane3000]

ACAS have told us that they can still go ahead with a disciplinary even if she is off sick - again, it's not advisable they do so but it can be done.

 

Also, it this was to go to an ET, I'm not sure how good that would look. The morning of her hearing, after emailing to confirm her attendance the day before, she all of a sudden pulls out a doctors note? Surely that would undermine any other reasons she would want to put to an ET?

[patdavies]

They're not allowed to say anything bad.

 

I'm sorry, but this is an urban myth.

 

They can say whatever they like, good or bad, as long as it is true and they can - if required - provide evidence to prove the truth of their statement(s)

[kane3000]

They can provide factual statements, I know personal references are no longer given. It's a game of risk where she would have to hope that a new employer doesn't dig too deep and just asks for length of service, job title and salary.

 

 

Our plan is this (her meeting is at 12.30pm):

 

*Ask to sit down before the hearing and discuss a compromise agreement.

 

*If they refuse this, then resign with immediate effect, stating that her position has become untenable (she has a pending greivance against the person that has instigated this disciplinary so they are linked) as she has attempted to reach an agreement that they have refused.

 

 

This could leave her open to being taken to county court IF they can prove it left them with a loss of earnings but that is a worse case scenario and something I don't think they could prove.

 

Of course, the latter option would relinquish her notice, appeal and any due monies but protect her record - which is paramount to her.

[kane3000]

Just to wrap things up, she has resigned with immediate effect.

 

We had drawn up a plan for her to try and discuss a compromise, then if all else failed resign with immediate effect but I don’t think she stuck strictly to the plan and bargained enough with them.

 

The bottom line was they said if she resigned they would still press ahead with the disciplinary so she said she would resign with immediate effect right there and then.

 

So that has been done and she is no longer and employee of the organization. At the very least she has protected her record from having dismissed or a disciplinary mark on it and can always invent a reason as to why she had to resign.

 

Phew.

 

At least now the stress levels can begin to drop…

[patdavies]

So that has been done and she is no longer and employee of the organization. At the very least she has protected her record from having dismissed or a disciplinary mark on it and can always invent a reason as to why she had to resign.

 

Only if she doesn't need a reference from them.

 

They can perfectly properly put into a reference that she resigned pending disciplinary proceedings.

[kane3000]

Well they can't as the proceedings are not pending as they were cancelled. They cannot proceed with a hearing if she is no longer an employee - otherwise they would've continued during her notice period.

[patdavies]

Well they can't as the proceedings are not pending as they were cancelled.

 

The disciplinary proceedings were pending at the point she resigned and then cancelled due to the immediate resignation.

 

So, I'm afraid that they can.

[kane3000]

It was minuted that they agreed not to and this was put into the resignation letter. So this will not be the case here.

[patdavies]

It was minuted that they agreed not to and this was put into the resignation letter. So this will not be the case here.

 

Fair enough.

 

You could have given us the full facts straight away and avoided time being wasted.

[kane3000]

Excuse me?

 

Time being wasted? I have been thorough enough throughout this thread - I provided an update which no one was obliged to answer, thus feel their 'time has been wasted'.

 

Are you now owed a time refund?

[Liz Southern]

Okay, kiss and make up, kids. Kane3000, however the company see their "reality" of the matter, they will be frightened that your OH still has time to take them to tribunal for something - anything - she cares to think of, so they should be willing to provide your OH with a written reference, but may I suggest that you strike while the iron is hot. Consider writing them a letter, next day delivery, (must be signed for), with very nice friendly wording along the lines of, "I am saddened that my business relationship with you has ended in the way it has, as during my time with you I have certainly enjoyed (find something good to say which won't prejudice your ET case if you make one). As a matter of goodwill, therefore, I would be grateful if you could provide me with an open written reference, marked "To Whom It May Concern", in order that we may finally draw a veil on this matter.

 

I look forward to hearing from you."

 

Odds on they will provide your OH with a reference as they will think that she is moving on in her mind, and this will clinch it.

 

If you do write something like this, it is important to use the word "may" and not "will".

 

Just a suggestion

Regards

Liz

[kane3000]

Well, we have attempted to reconcile on two occasions – once the disciplinary letter was delivered via courier on Monday stating the hearing was yesterday, we sent them a letter early next morning asking to arrange a pre meeting to discuss ‘other’ avenues. This was rejected.

 

We then planned to discuss a compromise agreement, to strike a deal to suit both parties before going into the disciplinary – and they would not entertain this either. She could’ve resigned with notice but they would’ve pushed forward with the disciplinary.

 

The way I view this is that the company (and we know that this has escalated high up in chain of command, if not to the highest – and this guy is a very well known billionaire owner of this group) were determined to show a strong hand and punish someone, someway. Otherwise an agreement could’ve been reached but they showed they were not interested at all. This company were originally going to be sued by another over this, although we have found out that it is not going that far after all.

 

My partner has pretty much lost any chance of going to a tribunal unless she was to allege that her position was made untenable due to the link of the disciplinary and grievance being linked to the same Director and the undermining of her position in her (old) department. That will take time and money and frankly we’ve achieved the main goal, which was protection of her record.

 

I personally think that the high chain of command will not be pleased that no punishment was given out and that they have no protection of their product as they could not put her on gardening leave. Ideally, I think they would’ve wanted both of those – dismiss her on gardening leave for x amount of months so they win all round, instead they have got nothing. Sure, my partner hasn’t got a pay off etc etc but this could’ve ended up a hell of a lot worse than it has.

Edited July 10, 2009 by kane3000