Personal Notes - Can they be Used in Evidence at Disciplinary Hearing?

[Wubbzy]

Calling employment experts out there.

 

Can personal notes made at work reagarding your job be used in evidence by management at a disciplinary hearing - the answer to this is really important.

 

Thanks!

[elpulpo]

Can you elaborate a bit more as to the circumstance here, it might help us to answer your question.

[Wubbzy]

My cousin has been accused of misrepresenting her knowledge of word in order to get a job - which I might add she hasn't! At a hearing last week her boss produced her notepad which had notes relating to word on it and these have been used against her.

 

Surely this cannot be acceptable?

[elpulpo]

That's a moot point. I suppose it could be argued by her employer that if the notepad and pen are company property, and she wrote upon them during working hours, then what she wrote is company property. I'm not sure.

Does she have a staff handbook, or anything similar, that makes reference to intellectual property?

[Sidewinder]

I think what the OP is suggesting is that a cousin claimed on a job application that she had a certain degree of knowledge in using MS Word which may have improved her chance of getting the job, and the employer is claiming that discovering notes made on a notepad suggest that the 'knowledge' may have been elaborated in order to get the job. Correct or have I read it wrong?

 

If so, then I suppose that it is possible, but would depend largely on whether they have any other reason to doubt her proficiency. If they don't believe her then could she not suggest that they test her? How long has she worked there, as if it has been less than 12 months they could use any excuse if they really wanted to get rid of her.

[Surfer01]

I had excellent Word skills but because I have not used Word seriously and indepth in 18 months I would need to refresh myself and write notes which is what she may have done. I think many people may fall into this category when applying for a job.

[papasmurf1cx]

Has she not got some training record of her qualification in the the subject? We all get rusty and can hone our skills up. If she has a record and that is what she presented at the job interview she has not misrepresented her skills. I agree that they she should test her. What caused the employer to start investigating her?

[bill1980]

I would say the employer would be able to use them as long as they havnt gone into a private locked draw or locker.

 

Can the notes be interpretted any other way?

 

Has your cousin got 12 months service with the company? If not it is difficult to fight against certain issues.

 

Bill

[honeybee13]

Also, Word has different versions. I get on fine with Word 2003 but struggle with 2007.

 

HB

[Wubbzy]

OK here is the story. Sorry its long!

 

Cousin has been unemployed for 3 years and has volunteered for almost 2 years in this company very successfully. Job came up - skills required included word.excel.powerpoint which she had used all be it 2003 package. Degree of knowledge was not specified on job ad or at interview. Cousin told them at interview that she hadn't used powerpoint but had used word and excel which was true. An outside agency had written her cv and used the word "confident" on her cv re word/excel. [will come back to that] She got the job.

 

4 weeks into the job her boss sat with her to go over some excel stuff and there was 1 command that she couldn't understand what her boss mean't her to do - she used a different expression than cousin was used to so she froze. Prior to this she had told boss she was finding big differences between using 2003 and 2007 packages and on her notes for whatever reason she had written how to save a file [used against her at hearing as per my OP]. Boss then told her that she should go home. Later that day she got a call to tell her she was suspended on pay pending "investigation." She was so shocked she didn't ask why.

 

She then received a letter telling her they might dismiss her and to attend a hearing where they allowed me to go along as her rep. Reason was "misrepresentation" of her word.excel knowledge and they made a big deal of the word "confident" in her cv. The hearing was heard by the said boss and one director. She fired leading questions at my cousin all to to do with knowledge of word/excel and implied that she had lied and effectively kept someone else out of a job [ she even mentioned another candidates skills]. She taped the interview as no one could take notes but she didn't write down my cousins full replies. I played things calmly hoping that they may give her another chance.

 

I stated that she had volunteered successfully, they know her background and that she hadn't worked for some time and that she hadn't worked for some time and they should have made allowances for this. 4 weeks wasn't long enough to settle into a job. We said that she was willing to improve her pc knowledge to the level the boss wanted where she replied it would take a year to do that!!?? I mentioned that the letter was a gross misconduct letter to which the director said it wasn't. This had never happened to them before and basically, I don't think the boss knew how to handle it. IMO, she handled it abysmally.

 

She has now been dismissed initially boss said it wasn't gross misconduct when asked by my cousin, then called back 10 mins later to say it was and then called back again when my cousin said that would affect her benefit to say it wasn't!!! She presented the case to the board and I can bet it was from her angle! Her parting comment on the phone was to say that if my cousin had know word and excel she would still be there!

 

I am livid. How can she get away with this? I now wish that in the hearing I had highlighted her mishandling of the whole affair - she should never have sent her home or suspended her. I wish I had asked her to explain her actions! My cousin has been made to feel like a criminal. Its bad enough to do this but to do it to a former volunteer!

 

We now have a right to appeal and even though I know she won't be rehired I want to highlight the incompetence of the manager to the board and make them realise how badly she has handled this whole affair.

 

She has left my cousin destroyed and I need advice on how to go about the appeal. How to word the reason for it etc and how to highlight her incompetence to the board. Because they have gone down the gross misconduct route she has a right to be heard before the board and I don't feel that the boss should be at that hearing.

 

Any advice asap would be much appreciated!

[papasmurf1cx]

Sounds to me like it is Wrongful Dismissal. Their use of the terminology "Gross Misconduct" is an attempt to hide their own cock up. They obviously wanted someone more highly trained but didn't enquire to the right degree. Your cousin has openly stated what her qualifications were and they hired her on that basis.

 

Have a look at these sites http://etclaims.co.uk/2008/01/what-is-gross-misconduct/

 

and http://www.compactlaw.co.uk/monster/empf15.html fort what is wrongful dismissal.

 

I don't think she was employed long enough to for the Unfair dismissal rights to kick in which I believe to be 1 year. I am sure others will give you advice too.

 

I would write to the company instituting their Grievance Procedure and complain especially about Wrongful dismissal. You can't make a purse out of a sows ear and that is what they are trying to do. Appeal. Take recording equipment in so your notes are complete. You could suggest that a training course in the deficient aspects be the answer. Perhaps if they see you mean business this dismissal can be retrieved as long as she wants the job back?

[Wubbzy]

Thanks! Yes, I agree that they didn't ask the right questions at interview - if she wanted Bill Gates that is what she should have advertised for!

 

I feel too that my cousin wasn't her choice but because she had been volunteering for so long, the board wanted to give her a chance. Instead of looking for ways to resolve the situation [at the hearing we did say that she was willing to undergo further training], she has seen this as a way to get rid of my cousin.

 

They haven't treated her fairly at all. I know she has only been employed for a month but that doesn't give the boss the right to treat her in whatever manner she wants!

 

Oh, my blood is boiling. We are now waiting on the dismissal letter to see how she had worded it.

 

Also, can someone clarify that if she does appeal, I take it they cannot hire a replacement until the hearing has been conducted?

[Sidewinder]

Your cousin is pretty stuffed here to be honest, only for the fact that she has only worked there for a month. There is absolutely no doubt that she has been very unfairly treated. They did not specify in sufficient detail what ther requirements were regarding software competency and they should be taken to task for this. There is a world of difference between certain versions of Office 2003 vs later versions. I would describe myself as 'confident' in using the programs, yet haven't got a clue when it comes to certain functions which aren't used every day.

 

Alas with a month's service they can dismiss with very little comeback. There is no recourse in law for an Unfair Dismissal claim (unless an element of discrimination on the basis of sex, religion, age etc - not because one manager prefers one candidate over another), but there may well be a case for Wrongful Dismissal as outlined above. From what you have said, the employer has acted unreasonably in dismissal for GM. Was your cousin paid for the week's notice that she would have been entitled to after completion of a month's service? If not, then that is all that she would be able to claim, although it would also benefit her in terms of what the employer could cite as the reason for leaving.

 

She certainly needs to exercise her right to appeal, on the basis that her competency in Office was not required to be on a particular package, and there was no dishonesty involved in her application. It would also be useful to say that she feels that she has been wrongfully dismissed and intends to pursue this matter due to the negative effect that their allegation of dishonesty may have in securing future employment.

 

The employer can do what they want with regard to hiring staff - there is no legal barrier to them rehiring the following day if they wished, although in an UD case they would look silly if the Tribunal were to order reinstatement.

[Wubbzy]

Thanks for that Sidewinder. I really feel that she should have been given a chance to prove that she did know word and excel. Her boss refutes the claim that there are big differences between the 2003 and 2007 packages stating that if she know one then it would be easy to pick up the other within days. I know that this is not the case because I have used both and there are big differences.

 

It was obvious that her mind was made up and since posting this I have also read on another site that she shouldn't have chaired the meeting because she had made the allegations. Perhaps the director should have chaired and asked the questions.

 

I am kicking myself because I now feel that I missed the opportunity to highlight their mishandling of the whole affair - let her off lightly I suppose. I have no intention of doing so now.

 

They have treated this as gross misconduct which it wasn't in which case they didn't follow their own disciplinary procedures. She stated that it was a trial period ie. we can do what we want and I want to ensure that I use this against them.

 

They could have given my cousin another couple of weeks to prove that she could use these packages but no, no fairness involved at all.

 

I am so angry I am actually considering consulting a legal firm to represent my cousin at the appeal because she won't be in a fit state to do so herself and I don't know enough about her rights to do so myself.

[papasmurf1cx]

Wubbzy.... I think you have done your cousin proud already. You are learning fast and that is what is important at the moment. A solicitor may take time to consider the situation and you may not get what you want. Personally I would put in a grievance on all the irregularities and appeal at the same time. Give them enough rope to hang themselves and then take them to the ET for the Wrongful Dismissal if you can.

[Wubbzy]

Problem is that only having been there for 1 month we can't go to ET. I am going to have to rely heavily on her mishandling of the whole situation from interview stage right through to dismissal. She is an incompetent manager who should be disciplined by the board for the way she has handled this situation. The case against my cousin has all been based on her opinion - she then went down the gross misconduct route reserved for serious offences like theft, drunk on job etc. She doesn't even seem to realise that she has gone down this route - to quote her "this has never happened before" - obviously. I need to go for her big time and I intend to.

 

Main concern is that they may not allow me to represent cousin at appeal and that is why I am thinking of contacting a lawyer.

[honeybee13]

Hello again. I agree with everything that's been said earlier. The only suggestion I have is that you could have a chat with ACAS's helpline to see if they can suggest any further arguments that might help you.

 

HB

[Surfer01]

More than likely they have discovered that they cannot afford to employ another employee so have looked at an excuse to dismiss her albeit a flimsy one. I reckon this is the reality of the situation..

[elpulpo]

Doubtful they'd allow a solicitor into the appeal hearing. A work colleague or a trade union rep are the standard.

[papasmurf1cx]

You could write and ask for a solicitor to represent you. The problem I foresee is getting the solicitor to agree!!!

[Wubbzy]

Hi again - cousin has received dismissal letter today stating reason as failing to demonstrate sufficient competence in word/excel as referred to in the cv.

 

We are going to appeal - I don't think for a minute that she will get her job back but I want the board to be made aware of the incompetent treatment by their manager and also that by accusing her of lying she has defamed my cousin's character. At least they will get the full story.

 

Can anyone advise if we have to put the reason for appeal in the letter as I would rather not give any forewarning of what is to follow.

 

Thanks again

[elpulpo]

You normally need to state the grounds on which you wish to appeal. You don't need to go into too much detail though.

[Wubbzy]

You know the further I delve into my cousin's rights on the issues the more worried I become. General advice on most sites is that because she was only in the job for 4 weeks, employer can basically take whatever action they want without recourse.

 

I am now wondering if rather than going down the appeals route[they would just back up the decision anyway] should we perhaps lodge a formal complaint with the board of directors regarding the conduct of the manager and the fact that she has defamed my cousin's character.

 

Only have tomorrow to decide what to do - help!

[elpulpo]

What I would concentrate on is the fact that she volunteered for this company for 2 years before taking on the paid role, you'd have thought they'd give her some credit for that.

Unfortunately, given her brief paid service, there isn't really any action you can take here, even if the accusations are invalid.

[Wubbzy]

Thanks Elpulpo

 

Would you advise against the appeal then and perhaps go down the route of lodging a complaint against the managers conduct.

 

we know she won't get her job back but she does want to make the board aware of the abysmal way that this has been handled.

 

I really feel that the board wanted to give her a chance because she had been volunteering but the manager had another candidate in mind and one way or another, she was out to get my cousin out of the door asap.

 

Instinct - I really think that is what happened.