Gross Misconduct investigation

[northwalesman]

Hi

I have received a Gross Misconduct letter about 3 separate incidents which were supposedly alleged in September 2009. Three staff members in total were given these letters all on separate issues. No investigation has happened, and I have not been given the chance to explain and I have also tried to give HR evidence. HR have informed me last month (May 2010) that due to organisation difficulties no investigation will happen. However, HR have stated they will be perusing a personal development policy. This assumes I am guilty of the allegation, and will involve extra training and will be marked on my personal record. I have suggested that this is not in my best interest. The other two staff members have taken up this ‘offer’. HR have stated that they will peruse the gross misconduct investigation with myself.

1) Can HR re open gross misconduct investigation ?

2) if others have been treated differently I.e. taken the route of personnel development does this mean discrimination?

3) 7 months since letter arrived 9 months since allegation.

[honeybee13]

Hi there and welcome. I was just about to sign off when I saw your post.

 

This does sound an odd way of going about the procedures, but I couldn't quote you chapter and verse.

 

Unless other caggers turn up, and it is Saturday night, can I suggest some bedtime reading, if you want to do your own research?

 

Try the directgov website about disciplinary procedures, or the ACAS one. ACAS also have a webstie you could look at, and also a confidential helpline you could ring from Tuesday.

 

I don't claim to be an expert, but the time lag thing you mention sounds odd. Hopefully this will be covered online, unless another cagger turns up with an answer.

 

Have you seen the disciplinary procedure of your company, and have they followed it?

 

HB

[northwalesman]

Hi,

Thanks for reply. I will phone ACAS monday*. I work in NHS and I do not think they are following correct policy. Its very hard to get any reply from HR. But hope fellow caggers will be able to help

Thanks

Edited May 29, 2010 by northwalesman
Tuesday*

[northwalesman]

Hi,

I would like to add I have sent HR and Management a letter which included: "HR and management have initially stated they will be investigating the cases under ‘gross misconduct’ and have applied 'sanctions' that are likely to have an effect on ‘my’ current and future employment prospects, a statutory framework will be necessary. There will also need to be guarantees of the independence and objectivity of the affiliates and a robust means of ensuring consistency in their performance and decision-making.

I would like to state that I have no confidence in the proposed procedure “step down” ‘personal development policy’ which I believe is likely to lead to unfair and inconsistent decisions which will not inspire confidence in the suggested procedure by HR and NHS Managers".

[northwalesman]

I feel that HR (is actually one person) who is looking at my case is digging her heels as its taken her so long to do anything. My evidence supporting myself is strong but they are refusing to look at it and seem to want to go down the gross misconduct route, really stressed at work as this is looming over me daily.

[honeybee13]

Hi there.

 

I know nothing about NHS rules, but they must be standardised throught the NHS, I would guess?

 

Did you know CAG has an NHS forum? There are some nice people on that. You could give them a brief outline of your problem and post a link to here, if anyone wants to have a look. Don't copy and paste what you've put here, make this your only thread about your employment problem, or you and I will have the site federales after us.

 

I hope that makes sense when you read it.

 

HB x

[Bigredbus]

Hi

I have received a Gross Misconduct letter about 3 separate incidents which were supposedly alleged in September 2009. Three staff members in total were given these letters all on separate issues. No investigation has happened, and I have not been given the chance to explain and I have also tried to give HR evidence. HR have informed me last month (May 2010) that due to organisation difficulties no investigation will happen. However, HR have stated they will be perusing a personal development policy. This assumes I am guilty of the allegation, and will involve extra training and will be marked on my personal record. I have suggested that this is not in my best interest. The other two staff members have taken up this ‘offer’. HR have stated that they will peruse the gross misconduct investigation with myself.

1) Can HR re open gross misconduct investigation ?

2) if others have been treated differently I.e. taken the route of personnel development does this mean discrimination?

3) 7 months since letter arrived 9 months since allegation.

 

(a) When did the incidents happened?

(b) Did the three incident you refer to happened in September 2009?

 

In cases of gross misconduct, the employer should have acted reasonably speedily in taking disciplinary action (inc. investigation) - if they delay without reserving their position, they may have waived the right to dismiss summarily (case law: Cook v MSHK Limited [2009] EWCA Civ 624, CA).

[northwalesman]

Hi,

Thanks for the speedy reply.

Yes the alleged incidents happened september 09. I went to see my line manager about two of the alleged incidets and dscused in detail.

 

I was called to see HR and a Senior manager on Novembe 09 and I was adviced to take Union rep which I did. I found out about he 3rd incident then, which had happened in September 09.

 

There has been no investigation. I think 3 people have been asked to investigate but all have pulled out. Then I got a letter stating "due to re oerganisation problems" they choose to go down the route of personal development. This in its self presumes that there is a problem wth a skill and all parties have agreed to this. but I havent and i have always said i am not gulity and i have proof.

 

I will have a look at this case law sounds interesting.

Thanks

[northwalesman]

Hi all,

I have read the case law, and its complicated but interesting. Does it mean that if they do eventual investigate my case they are limited to proceed.

 

I would like if anybody can explain if by stopping gross misconduct investigation and going down a route of performance improvement policy and then deciding to go back to gross misconduct investigation is correct. They have decided to do this as I questioned the rational for this policy and I stated I did not have any trust in this procedure. I asked for a meeting with HR and management to discuss this process. But it seems they just want to proceed.

 

As I have stated before its (sep ‘09) 9 months since allegation on a incident form, 7 months since gross misconduct letter, 2 months since performance improvement policy was mentioned.

 

Id like to point out that the alleged incidents has happened to others but they have never been investigated. And have never been taken down the route of gross misconduct or performance improvement route. They are stating as 3 incidents were put down on an incident form within 2 weeks. I have looked at other incident forms and there are many incidents far more serious that have happened in clusters, but none have been investigated.

Thanks NWM:confused:

Edited May 31, 2010 by northwalesman
spelling

[scousegeezer]

NWM,

Do you have any correspondence stating that the gross misconduct has been halted/withdrawn - as you state above. One would have thought that if they are "investigating" an allegation of gross misconduct they would like to conclude it ASAP. After all it would be in the best interests of the employer ( negative publicity and all that). If you do have corresondence stating it has been halted , they cannot re-instate it. They CANNOT have two bites of the cherry. I would habe thought that if it was GROSS misconduct they would ensure they found someone/ time for the investigation to be completed. As for the perfoprmance side of things, the organisation are at liberty to monitor their employees and if they feel that there is room for improvement in an individuals performane they can give targets to be reached. Performance does not have to relate to discipline. Hope this helps.

 

Cheers - Scousegeezer.

[northwalesman]

Hi thanks,

Yes i got a letter its states:

"...the matter was going to be investigated under the discliplinary policy. I can now confirm ...that the matter will now proced under performance imprpvement process..."

[northwalesman]

Hi

Sorry for all the little bits im adding.

 

I have also 2 months ago asked for a meeting to discuss possible discrimination issues but I got an e-mail back stating that HR are not discriminating and that was it.

 

Thanks

NWM

[scousegeezer]

NWM,

It may well be that they are aware of the above case and in effect have timed themselves out. As I have stated above - they are entitled to performance manage their staff - it does not mean that it is discipline related. What is the basis of you allegation of discrimination. Have you seen your union about all this. The information supplied so far on this thread should assist him/her.

 

Cheers - Scousegeezer

[northwalesman]

Hi,

Again thanks for information. I do have a Union member (Unison), but I feel the need to make sure I have relevant information to help myself.

 

I believe that they are discriminating against me due to the fact that there have been a lot of incident reporting were I work. I believe 40+ that are far more serious than what I have been accused of. There have been 5 that are the same as mine on one instance and neither have been investigated further than the ward manager looking at them. Like I stated there have been 40+ and neither of then have been investigated. Nobody has been placed on a performance improvement policy exept for the two people i mentioned before and they ar not included in the 40+.

 

This policy is in itself disciplined related as there has to be a shortfall in your working practice and you have to be monitored for 12 months and can be re implemented at any stage in that 12 months and continued again or indeed suspended from work of be placed on gross misconduct.

 

As others in my working environment have been seen to make errors and have not been placed on any sort of gross misconduct or performance improvement, I was queering if this does mean discrimination. Again as the gross misconduct seems to have been stopped and they have tried to place me on performance enhancement, suggesting I am guilty without evidence been looked at.

 

Thanks again

NWM

Edited May 31, 2010 by northwalesman

[northwalesman]

Hi

So it seems that HR are limited to proceed with gross misconduct.

 

However, do I have a case for discrimination or grievance in the way I have been treated, or for them swapping from GM to personal development policy which presumes I am guilty.

 

Thanks

[northwalesman]

Hi,

I feel that the HR and Management have treated me in an awful way for the last few months. I am constantly stressed and thinking of the situation all the time.

 

I am thinking if I have a case against them, I just feel that they can not be allowed to proceed in this manner. I am amazed how many people thought this site are being discriminated bullied and harassed . This must be a tip of the iceberg as I did stumble across this site. I am glad I did. I know most if not all my colleagues would probably accept HR and managements decisions.

 

I feel if I allow them to ‘get away’ with treating me in this manner it will become normal practice and acceptable in my working environment. Therefore, making others to have go through this process.

Thanks NWM

[Bigredbus]

Hi thanks,

Yes i got a letter its states:

"...the matter was going to be investigated under the discliplinary policy. I can now confirm ...that the matter will now proced under performance imprpvement process..."

 

Hi,

 

I wonder if the action(s) resulting from a 'performance improvement process' is/are the same as in a disciplinary process, in your case?

 

I wonder if your employer has not being too 'clever' to change the denomination of his intended action in order to mask the real intentions...

 

You should be extremely careful about the process your employer intends to apply and, most important, what would be the outcome...

[northwalesman]

Hi bigredbus thanks for the reply,

 

What do you think I should look out for. Any case law that would support me? or any information in what I could d to protect my self.

 

Thanks

 

NWM

[northwalesman]

Hi,

I phoned ACAS and they state that I should have had the opportunity to appeal the initial Gross Misconduct, which I did not know about or indeed have the opportunity to do. They also confirm that the length of time it has taken is /will not be seen as good practice as it goes against the ACAS code.

 

They ACAS state that I could write a grievance letter to hold a meeting on my terms to ask them question.

 

Any ideas or terminology case law that I could use or take with me in support.

Tanks NWM

[northwalesman]

I seen these points on Internet and I thought that the HR did not follow therefore, I thought they might be the questions I could ask why they did not follow if I was to hold a grievance meeting?

 

…the elements of a fair disciplinary process are not overly complex or technical (Ten things managers need to know about...misconduct disciplinary situations) .

 

A disciplinary process can broadly be broken down into the following elements:

　

carrying out a thorough investigation to establish the facts

 

informing the employee of the evidence and the basis of the case against them.

 

holding a meeting with the employee to allow them to answer the allegation

 

deciding the facts, whether the allegation is made out and if so the appropriate sanction

 

dealing with any appeal against the decision

[Bigredbus]

Hi,

 

You digged out the right information about disciplinary procedure... well done...

 

Now, you should write (letter/e-mail) to your HR department and request that they clarify what they understand by 'performance improvement process' and what it encompasses... and most important... does that process activate any type of award?

 

You do not want them to call that process anything else but a disciplinary action if it does trigger an award...

[northwalesman]

Hi

Thanks for the reply.

 

What does activate type of award mean? what should I look out for?

 

Do I need to ask them to clarify what they understand by 'performance improvement process' before I ask for grievence letter or is that the same thing.

 

Thanks

 

NWM

[Bigredbus]

In your letter, just state that you acknowledge their intention to initiate a 'performance improvement process', but that you need information related to such a process as you do not know what it encompasses...

 

If the outcome of such a process is to formally warn you about your capabilities or performance, then it would certainly be construed as a disciplinary hearing. Something you want to avoid as they waved their right(s) by waiting such a long time before taking any corrective action.

[northwalesman]

Hi,

I do think the 'performance improvement process' will be about capabilities and performance. Howerver I will write to them via my union rep and ask them about it.

 

I have suggested before to HR that I do not agree or think it fair to use this policy with me, as it suggets I am guilty without any investigation. I have also stated that as far as im aware nobody has ever questioned my performance.

 

The more I reed and advice I get, it seems as if HR is not following any type of policy, or have got it totally wrong. They have caused me so much worry and stress over this matter. But i am learning about employment issues, and I can pass this on to fellow peers.

 

Thanks

 

NWM

[Bigredbus]

Basically and to simplify...

 

If at the end of that process they award you with say, a written warning, then such a process would be construed as bent as your employer would have used a 'fabricated' route to penalise you... as they could not discipline you over your first offence alledgedly committed in September 2009 (or October 2009).

 

You must find out what the process encompasses and how they will aplly it.