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Received Final Written Warning AND Demotion?! Help needed..


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Hiya

I have just come out of a disciplinary, in which I have been issued with a Final Written Warning, and also told that I will also be demoted from Manager to Assistant Manager.

The reasons for my disciplinary were 'Falsification of company documents and failing to adhere to banking procedures, which have resulted in a breakdown of confidence and trust' The falsification of company documents is listed as a reason for Gross Misconduct in the staff handbook.

 

At present they are still deciding where I will work as an Assistant Manager, and I will be contacted in due course to inform me where I will be working and at what salary (will be lower than my current salary.)

 

However, after a bit of research on the net, and looking through my staff handbook, I am not sure whether I should have received both sanctions.

 

The handbook reads:

The outcome of the disciplinary hearing will be one of the following:

- No disciplinary action will be taken.

- Verbal Warning

- First Written Warning

- Final Written Warning

- Dismissal with Notice

- Summary Dismissal (without notice)

 

As you can see, it does not mention the possibility of demotion at this relevant point in the handbook.

 

However, there is another section in the handbook which states the following regarding Redeployment:

 

In certain cases, as an alternative to dismissal of an employee whose performance is found to be unsatisfactory, the Company at its sole discretion may consider a transfer to a more suitable position assuming an appropriate vacancy exists.

 

Now, what I am wanting to know are the following:

 

Should redeployment(demotion) have taken place as an alternative to the Final Written Warning, or in conjunction with?

Should my salary be affected as a result? And if so, should I still be entitled to a further month at my current salary before it drops (contract states that if the company were to terminate a contract, they will give one months notice.)

If I do decide to raise this with the company, are they then allowed to change the outcome of the disciplinary if they do agree/find out that they should only do one or the other?

How should I raise this issue with the company? If its by appeal, they can change the outcome in either direction which could result in dismissal.

 

I do feel that I should feel happy that I still have a job - albeit not the job I have carried out for the past 3 years, however the demotion with a pay decrease will leave me in a difficult situation.

Any help would be greatly appreciated it, I feel very confused!!

 

Thanks

Graham

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You would seem to be stuck between and the devil and the deep blue here.

 

The main point is whether you were guilty as charged? Did you commit the act(s) that you were accused of and is the action taken by the employer 'fair' in the circumstances? If you accept that your actions were indeed a matter of Gross Misconduct, and there was a very real possibility of being dismissed as a consequence, then that has a bearing on what, if anything, you should or shouldn't do next.

 

On the face of it, you may think that since demotion is not stated as an available disciplinary sanction in the contract, the employer should not have taken the action that they have. This may create the possibility of you resigning and making a claim of Constructive Dismissal over a breach of contract, however even though the breach may be clear, the employer could well be in the clear as they have followed correct disciplinary procedures and their actions were justified as the alternative would have been dismissal.

 

As you correctly state, you do have a right of appeal, and could correctly challenge whether you should be a) be demoted in the first place as the contract does not allow for this, and b) whether you should have received a FWW and a demotion. You are also correct that the employer could reassess the severity of your actions and decide that dismissal would have been more appropriate - IMO particularly likely if they believe that you are trying to split hairs or challenge their authority!

 

Similarly, the relevance on whether you should receive a further month's money is also a matter of judgement. You may well have an argument, but the counter is that you could have been dismissed without notice. The employer is not terminating your contract but is proposing to vary it as an alternative.

 

What the employer is doing represents a change in your contract - it is down to you whether you accept that or not, and whether if you don't, you would have any justification for a claim of CD. Such claims are nigh on impossible to prove, so I think in summary that if you believe that you have a realistic case against the employer that you should think long and hard about it and take proper legal advice as to whether it should be pursued.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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Thanks for your reply, pretty much confirms my thoughts.

 

I do accept that I have falsified documents, although this was minor (sign in/out form) and done for what I believe is a justified reason, and was not for personal gain in any way.

 

I really want to appeal, but I don't dare to do so as I really can't afford to be earning nothing. Do you think there's another reasonable way in which I can raise these points without officially appealing?

I haven't looked into this yet, but do you think ACAs might be able to help in any way, especially as they write the recommendations?

Thanks

Graham

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I agree with Sidewinder. The employer has a contractual right to demote, and had they not done so, the outcome would quite possibly have been dismissal. Even if they had no contractual right to demote, you would have been unlikely to win a case at tribunal because even if you won, any award would have been significantly, if not entirely, wiped out by the fact that you did what you were accused of. I think your best advice would be to accept this, stick your head down, win back their trust, and get your record clear of the offence. Understand that it doesn't matter that it was minor (in your view - obviously not in theirs), or not for gain - it was falsification of records, and you were lucky not to be dismissed. Many people have been dismissed for less.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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