Suspended pending investigation thats already happened ?

[mikeyboy197663]

Hi,

 

Was the allegation 4 disscussed in the disciplinary meeting and the evidence refered to or shown ?

 

Regards

[majik]

Not discussed as allegation 4 but 1 question was asked which is below.

 

A question was asked which was "what happend with your managers code", i replied "i do not know but i didn't give it to my OH" and handed over OH witness statement, meeting was adjurned for 30 minutes and i was told "after a full and thorough investigation that it was the chair persons belief that i had lied and that staff member had not released the code as OH witness statement suggests".

 

30 minutes for a FULL AND THOROUGH INVESTIGATION thats a got to be a joke right ?

 

 

 

They told me they were goin to add allegation 4, why did they need to adjurn the meeting to investigate it ? why was there no evidence already available? why is it still being withheld months after the event ?

 

Disciplinary meeting minutes actually state " we are here to discuss the 3 allegations made against you and will deal with each one in turn"

 

They then read through allegation 1-3 and eash is discussed, i am then asked if i have anything to add, i reiterate that i have done no wrong and no evidence has been produced to suggest otherwise. That is when the question above is asked.

 

To Date no evidence has been shown to me and all i have been told by the CEO (at the appeal meeting) is " a witness statement from staff member does exist and he has seen it", and if "he feels its revelant it will be released to me" To date nothing has been released despite asking repeatedly

[mikeyboy197663]

Hi,

 

What was the date of the code incident ?

 

What was the date of the disciplinary meeting where you handed over OH statement ?

 

Regards

[majik]

There were a couple of days between the code incident and the disciplinary.

 

However i was told that they were adding allegation 4 (on the day the code issue happened) so they should have gathered all the evidence needed before adding it or at least investigated the issue before stating that they would add it.

I did also state at the begining of the meeting that if they had any new evidence i would need a copy of it before it would be discussed and they stated they had "no new evidence".

[mikeyboy197663]

Hi,

 

They probably had all the evidence before disciplinary, and they just had the 30 minute break in the meeting to read your oh statement and clarify details over the phone with over members of staff, they could have asked staff there side then got them to type up statement for the records.

 

This is perfectly legal and they do not have to give you copies of evidence. sorry

 

Regards

[majik]

Surely they have to show me the evidence ? even if they dont give me a copy.

At this moment in time i have nothing to say the evidence they speak of exists other than someone "claiming" to have seen it.

 

It is merely my word against anothers with the exception that i also have provided a witness statement.

 

Is it normal practice for a company to work like this, to actively seek a ET and to ignore requests for evidence required.

 

Can i also claim Breach of Contract as it clearly states in the contract that they will provide any evidence requested which to date they have not they have just ignored my requests.

They have already refused to do this as they claim some evidence i requested in not available anymore.

[mikeyboy197663]

Hi,

 

Have you put it in writing, making a formal request for evidence to the ceo ? and if they have refused have they written back saying why they will not supply it ?

 

What contract are you referring to ? is it your employment contract ? i did not think that contracts stated this, do you mean a staff handbook ?

 

What evidence do they say they have lost ?

 

Regards

[majik]

Employee handbook states it, i also think the company contract does as well, i will need to check later.

 

Yes it has been put in writting and ignored to date and is also noted in the minutes at the appeal meeting where the CEO states that "if i feel its relevant it will be released" that was a over a month ago and to date it has still not been released.

Thats not a fair investigation now is it, IF CEO thinks its relevant you can have it if not you cant.

 

They havent lost anything, they claim footage i requested is no longer available.

 

I believe that they are in breach of ACAS principles as below.

 

9. If it is decided that there is a disciplinary case to answer, the employee should

be notified of this in writing. This notification should contain sufficient information

about the alleged misconduct or poor performance and its possible consequences to

enable the employee to prepare to answer the case at a disciplinary meeting. It

would normally be appropriate to provide copies of any written evidence, which

may include any witness statements, with the notification.

12. Employers and employees (and their companions) should make every effort to

attend the meeting. At the meeting the employer should explain the complaint

against the employee and go through the evidence that has been gathered. The

employee should be allowed to set out their case and answer any allegations that

have been made. The employee should also be given a reasonable opportunity to

ask questions, present evidence and call relevant witnesses. They should also be

given an opportunity to raise points about any information provided by witnesses.

Where an employer or employee intends to call relevant witnesses they should give

advance notice that they intend to do this.

 

22. Some acts, termed gross misconduct, are so serious in themselves or have such

serious consequences that they may call for dismissal without notice for a first

offence. But a fair disciplinary process should always be followed, before dismissing

for gross misconduct.

OH is going to ask as part of his SAR response for it to be noted how long the company keep CCTV footage for to ensure that it complies with ICO recommendation.

 

Now can anyone advise if this is a normal procedure ?

 

Surely it is in the companies best interest to prove the allegations they have made not deliberately make there life harder by refusing to release infomation therefore forcing the ex employee to an ET ?

Edited December 14, 2009 by majik

[mikeyboy197663]

Hi,

 

Most companies only keep the last months cctv footage, as you stated in previous posts your OH is in the security business, so should be well aware of this rule.

 

Because it was deemed to be gross misconduct they do not have to supply you with all the evidence, just the reasons for dismissal, the date your employment will be terminated, and the name of the person you might want to submit your appeal to in writing.

 

It seems like they sacked you for "breach of confidence" (subject to the public interest disclosure act 1998) this is standard among many companies.

 

Regards

[mikeyboy197663]

Hi,

 

All it states above is "It would normally be appropriate" this doesnt mean they have to supply you all the evidence.

 

As it was deemed that the matter was so serious it resulted in gross misconduct.

 

Regards

[majik]

Most companies should keep footage for no longer than is required (Widely accepted as 1 month), This company keep footage for longer than that hence why OH is asking the question in regards to the policy, Company seem to keep footage for around 3 months if not longer however when i requested footage it was unavailable so need clarification on the actual amount of time they keep it for.

 

If i was sacked for that reason stated it should be stated in dismissal letter it is not so i would have to assume that i have not been sacked for that offense.

[majik]

Hi,

 

All it states above is "It would normally be appropriate" this doesnt mean they have to supply you all the evidence.

 

As it was deemed that the matter was so serious it resulted in gross misconduct.

 

Where are you getting the infomation in red from ? i have found no referance to it to date and it has never been mentioned when speaking to my partners Union ?

 

Regards

 

Can anyone else confirm that in cases of Alleged Gross Misconduct the employer can provide no evidence (Remember i have neither been given a copy of or even seen the alleged evidence.) for an alleagtion and still sack you for it ?

[mikeyboy197663]

Hi,

 

Was the camera system working correctly when you left ? They may say it was broken or faulty.

 

And what was the exact reason they sacked you for ? how is it worded in the letter ?

 

Regards

[majik]

Allegation 1 and alleagtion 4 were the reason for dismissal, allegation one i believe has been upheld in my favour at the appeal (awaiting confirmation as it is not stated one way or the other just the have no evidence to show i gainned from TOIL so accept that it may have been an admin error)

 

Camera was working fine, they have provided footage both before and after the time frame i required just state the footage i require is no longer available.

[mikeyboy197663]

Hi,

 

If they sacked you for "breach of confidence" then this is deemed in all companies to be gross misconduct ?

 

This is standard knowledge and will be listed in your ex companies staff handbook.

 

Regards

[majik]

As i earlier stated i was not sacked for breach of confidence, You are the one who has menetioned this not myself.

[mikeyboy197663]

Hi,

 

For what incident are you requesting the cctv footage for ?

 

Regards

[majik]

It was requested to disprove an allegation, it is no longer required as they have accepted i did no wrong on that alleagtion however the point is if i had been given the access to it as stated in Handbook i could have proved the company wrong in the disciplinary as opposed to the appeal to the disciplinary.

[mikeyboy197663]

Hi,

 

Sorry if i seem a bit confused.

 

But why are you still requesting cctv footage if you have been proven inncoent on the charge the cctv relates to ?

 

also giving out pin codes, access codes etc is allways deemed as breach of confidence, i was just stating what all companies say, if you look in your companies handbook it will probably say it as well.

 

Regards

[majik]

Im not requesting the footage anymore just stating that the footage i requested is no longer availble which is a breach of contract and there own disciplinary procedures which states in the event of disciplinary action any evidence requested should be provided.

 

No mention of breach of confidentiality in handbook either,it has never been mentioned before until you brought it up.

 

Elpulpo/Mariefab if your still around could you confirm what mikeyboy stated earlier

 

If i was dismissed for Gross Misconduct would the company have to provide evidence to prove the alleged offence ? It seems ludarcis to me that if your are classed to have commited Gross Misconduct the company do not have to show you/provide you with any evidence to back up there alleagtions.

[mikeyboy197663]

Hi,

 

In the handbook what reasons does it give for gross misconduct ?

 

could you possibly write what it says exactly about the evidence in the case of gross misconduct.

 

Thank you

 

Regards

[majik]

Evidence at disciplinary hearings

 

The Acas Code recommends two significant steps (see below) that are viewed by many as not strictly necessary from an unfair dismissal perspective, even though they were also recommended by the previous (2004) version of the Acas Code. Given the additional compensation that may now flow from an unreasonable failure to follow the Code best practice dictates they should be considered under the new ACAS Code:

 

Reviewing the charges and evidence

 

The Code requires employers, at the start of the hearing, to "explain the complaint against the employee and go through the evidence that has been gathered". This stage has often been ignored in the past, or taken as read, since the employee should already have been given the opportunity to digest this information.

 

The part in bold was done in relation to allegation 1-3 but not allegation 4 which is what i was ultimately sacked for.

[majik]

At this moment in time i cannot provide you with all the infomation you have requested mikeyboy as i dont have it to hand

 

General things classed as Gross Misconduct such as, Deliberate falsification of time sheets, Theft, Violance etc cannot remeber everything of top of head, seems like a basic template though that listed about 5-6 things and said there was more but list very long.

 

i believe the common theme is that it must be an action that has a serious impact or consequence. There was no serious impact or consequence on the business in relation to allegation 4, my OH is not even sure if he entered the building in question, as he was looking for CCTV signs they would be by the entrance so he may have opened the shutter but not entered the building, CCTV will clarify this on recieved.

 

There is nothing mentioned about Evidence relating to Gross Misconduct just evidence relating to Disciplinary which states any evidence requested to be use in the even of disciplinary action should be requesed and will be released in a timely manner.

 

Can you explain where you obtained the infomation that stated no evidence needs to be provided or shown to an employee if the issue is classed as Gross Misconduct ?

Edited December 14, 2009 by majik

[mariefab]

Yes, best practice is that employers should go through the evidence of the charge that you are to be dismissed for.

In your case they didn't (with regard to Allegation 4).

This does not mean that it's game over.

If employers always did exactly what they should when dismissing employees there would be no such thing as unfair dismissal.

You need to accept this and focus on the things that can constructively help you.

 

The Appeal letter states that, "I have a reasonable belief that you did seriously breach security and confidentiality by providing the access code to your partner which he subsequently used to access the premises."

 

They will need to show the tribunal that they had sufficient grounds to hold this "reasonable belief".

 

They could simply provide a witness statement from the employee denying having given your OH the pin code. That might be enough.

 

You need that CCTV footage.

Do you have a copy of the SAR requesting the footage?

Can you prove that the Company received it and when? (Did you send it recorded?)

Have they made any written acknowledgement that they received it in any of their correspondence with you of your OH?

How long after they received your SAR did the CEO send his letter saying no further action etc.?

If you do have a copy; check it carefully to ensure that it covers the footage that you require.

Get your OH to write to the CEO (data controller) again pointing out that the deadline for compliance with the SAR has passed and he has not yet received the CCTV footage he requested. Inform him that he has a two week extension before further action regarding this default will be taken.

[majik]

Yes, best practice is that employers should go through the evidence of the charge that you are to be dismissed for.

In your case they didn't (with regard to Allegation 4).

This does not mean that it's game over.

If employers always did exactly what they should when dismissing employees there would be no such thing as unfair dismissal.

You need to accept this and focus on the things that can constructively help you.

 

The Appeal letter states that, "I have a reasonable belief that you did seriously breach security and confidentiality by providing the access code to your partner which he subsequently used to access the premises."

 

They will need to show the tribunal that they had sufficient grounds to hold this "reasonable belief".

 

They could simply provide a witness statement from the employee denying having given your OH the pin code. That might be enough.

 

You need that CCTV footage.

Do you have a copy of the SAR requesting the footage?

Can you prove that the Company received it and when? (Did you send it recorded?) Yes was sent recorded

Have they made any written acknowledgement that they received it in any of their correspondence with you of your OH? Yes they made a very stupid request stating they needed to know what OH looked like to be able to know they were releaseing the correct footage. (Still claiming OHas violent and aggressive at this stage

How long after they received your SAR did the CEO send his letter saying no further action etc.? 40th Day after it was received

If you do have a copy; check it carefully to ensure that it covers the footage that you require. Yes clearly covers the infomation OH requires actually states OH require all CCTV and all other infomation that the company hold about OH specifically including then list the CCTV OH require all CCTV and all other infomation that the company hold about myself specifically including then list the CCTV OH requires including dates,time frames etc.

Get your OH to write to the CEO (data controller) again pointing out that the deadline for compliance with the SAR has passed and he has not yet received the CCTV footage he requested. Inform him that he has a two week extension before further action regarding this default will be taken.

 

I will get OH to chase company to again request CCTV, Could he also request the witness statement for staff member as it is about him ?