Gross Misconduct- Appeal pending, what can we do

[ran1972]

hi

 

My wife was dismissed for gross misconduct, she is appealing against the decison , under the following grounds ( working for a bank)

 

1 it states in her procedures that a copy of the summary report & any related documents must be sent to the employee in advance of any heraing. ( she was not sent any documents ),

 

2. it states in her proceures & policy bookelet that the leter inviting her to the earing must contain the seriousness of the alliagtions & the posibility that she could be disssmed ( again they did not do this)

 

3. The decison was harsh as aother members of staff who had there hearing after her were for the same offence were only given final written warnings ( these others were conducted 2 weekes after my wifes)

 

can someone tell me what the chances of winning an appeal are , and also the chances of winning at tribuneral ?,

[elpulpo]

I think what needs to be considered is this -

 

Had the employer followed proper procedure, would they have arrived at a different decision?

 

It's my understanding

(and let me emphasise that I'm not a legal professional, just a lay person with practical, industrial experience of employment law)

that in employment law there is a principle known as 'The Polkey Principle'.

 

Simply put (I put things simply not because I'm assuming that you're simple, but because I know that I am), if an employer fails to follow correct procedure in dismissing someone, but it is considered that had they followed procedure the end decision would have been the same, then whilst the dismissal will be considered unfair from a procedural point of view the dismissed person will only be entitled to a reduced amount of compensation, or quite often no compensation at all.

 

Google 'Polkey' and have a look. Someone who went to school will probably explain it far better than me.

 

So that I think needs to be looked at.

Obviously I don't know the facts of your wife's situation.

 

On a practical basis, you may well be able to embarrass/frighten them into changing their minds with the failure of procedure.

You said she works for a bank, so presumably a big operation with HR. They have no excuse for cocking up disciplinary procedures.

 

With regard to your 3rd point, something to bear in mind is that the other members of staff might have different disciplinary records?

If they didn't have 'previous' and your wife did, that might account for the discrepancy in the outcome.

Obviously I don't know. If your wife has nothing previously against her name, then the inconsistancy of outcome in this matter then becomes a strong arument that she can use.

Edited December 7, 2009 by elpulpo

[elpulpo]

But surely elpulpo, if the misconduct that all 3 were accused of was deemed to be gross misconduct, then the only reasonable outcome of all 3 disciplinary hearings would be dismissal.

That's what happens when you commit gross misconduct - you get fired. No?

[elpulpo]

Aye, that's a good point elpulpo.

I hadn't thought of that.

[elpulpo]

I once got sacked for talking to myself.

[ScarletPimpernel]

That's what happens when you commit gross misconduct - you get fired. No?

 

Not necessarily. Whilst gross misconduct might result in dismissal, any other sanction could be applied.

[elpulpo]

Quite unusual though, isn't it ScarletPimpernel?

[ran1972]

alll

 

my wife has worked there for 3 years blemish free,

 

the procedures state " in advance of the meeting, a copy of the invitaion to the meeting a copy of any documentaion & reports that are relevent to the employee and ther case"

 

the argument would be if we were in possesion of all the material we could have been better prepared & also maybe resighned.

 

my main thing is to get her employment record clear agian , as it has gross misconduct on it. money is not the main reason for the appeal

[elpulpo]

is she guilty of what they accused her of?

[ran1972]

ok here's the detail

 

she acidently used someone else's login to change a customers details , the person's who's login she used was serving the customer & she was next to her. her collegue walked away from the terminal without login out , and my wife carried on serving the customer

 

it was then found out that the customer she served was a fraudulant customer. the person had false documents . and were linked to another member of staff that had been sacked ( imediadley before my wife was , so but the others who had done the same as my wife have been just given final written warnings , as there hearings were on a different day , the same manager has heard the dissaplinarys )

[greendollar]

it's clear that the bank has not followed statutory disciplinary procedures , they also have a duty to treat all colleagues fairly and be consistant in their treatment of all employees....they can't dish out verbal/written warnings to one person and sack another for exactly the same offence...thats blatantly unfair treatment,especially as you have a clean disciplinary record.

Dismissing someone for gross misconduct should only be done if all other avenues are exhausted and this is something the Tribunal would expect the bank to follow.

Be sure to bring these points up at your appeal.Good luck

[ran1972]

some new info

 

my wife was dissmissed for gross misconduct and is apealling against the decison

 

the reasons for the are , in the company proecdures it states that all documents & reports relating to the incident must be sent tp the employee in advance of any dissaplinaty meeting , they did not do that and refered to the documents that she did not have sight of.

 

in procedures it states that the letter inviting her to the dissaplinary must give the possibity of the worst sanction that coykd happen , again they did not do this

 

we are still awaiting the documents that they relied on as the appeal is pending,

 

one of the fundermental items they stated that it system details o a customer were changed on someone elees smart card by my wife ,and they refered back to cctv stills of that time ( they have still not shown at any stage the pictures) . we have now found out and are getting in writing the time on the cctv was wrong and it was not my wife who changed the infomation.

 

they stated that as a result of her actions the bank lost money do to fraudulant activity , again we have found out that there was no loss of funds , ( we will have confirmation of this in writing)

 

we have also been informed by a manager un offially that any sanction given out at a dissaplianry that did not follow procedure or coreect documentation must be redcued on appeal.

 

i don't want to get my hopes up but i really need to now what the likey outcome would now be

 

(we have just stated the process of legal papers if she dose no win as a lawyer has agreed to take the case on on a no win no fee basis)

[greendollar]

Just make sure your well prepared at your appeal,put your points across and try not to be intimidated.

Ask for disclosure of all the evidence and ask that you are given a reasonable amount of time to seek advice.

From what your saying your wife wasn't at fault here so I can't see how they can sanction her at all.

[mariefab]

As these sort of meetings are stressful it's probably a good idea to document the whole of her defence and hand that in during the appeal meeting, just to make sure that all of the defence is provided.