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Disciplinary Hearing in a few weeks - a bit complicated.


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I work for the NHS. In late April I was called into the managers office. A website I had contained information that he was concerned about. The website was something I had recently created, had openly advertised in work and featured spoof stories, parodies of work related situations etc. These stories, themes and the writing style had been in existence for six years in the form of a newsletter that I had been producing. He was unaware of the newsletter. All ten issues of the newsletter had been scanned and made available on the site too - I thought I was providing a service for staff old and new.

 

Anyway, he initiated a formal investigation which, seven months on, has resulted in me having to attend a disciplinary hearing in a few weeks time. The charge is of publishing material on a website that was available in the public domain and could bring the trust into disrepute. I have obviously never hidden the fact that I created the website and dont deny the content was there, but am perplexed as to this idea of the 'public domain'. The newsletter I wrote, which produced 10 issues in those six years, would frequently be taken home by staff members, without my consent, or even left around on the ward for patients to read. It contained the same zany, self-deprecating, absurd articles as the ones that supposedly cause concern on my website.

My website, however, was not advertised or promoted. My website was *registered* with google, which anyone knows is vastly different from *advertising*. In other words, the website had three random hits in the space of two months. No complaints from members of the public. Just certain managers who took objection to the content. Arguable, the issues that were taken home by staff members were exposed to a wider 'public' audience.

 

Every letter I have states 'if the charges are proven you *could* be charged with gross misconduct and *could* be summarily dismissed'

 

But why havent they suspended me then? I have been allowed to work for seven months, since this was initiated. If they have such grave concerns about my conduct, if they feel the trust between employer and employee has broken down to the point where they think there is a realistic chance of me being summarily dismissed, why am I allowed to still work ?

 

Also, I have just got another job, in another NHS trust. Due to that Trusts long recruitment process it could be two months before I can start. How does this disciplinary hearing impact on me starting my new job? If the hearing results in a dismissal (and I will definitely take them to a tribunal if it does) then how would that affect me, if at all, in working for another trust?

 

Any feedback on this would be greatly appreciated. Thank you.

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Additional - As far as I am aware, references have already gone in regarding my new job in the other county. I plan to hand in my notice in a week or so, before the disciplinary hearing, giving my end date sometime in mid December as I expect to start my new job in early Jan 2011.

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Hello and welcome to CAG. I hope we can help you.

 

Have you told the other trust about the disciplinary hearing? I know some disc procedures can be mentioned on references, but I forget which. Hopefully someone else will comment, I don't want to guess.

 

What is the internet policy of the Trust? It would normally be in your Ts and Cs of employment, or maybe on a noticeboard or an intranet site. I think you need to tell us that to get better advice.

 

Can you say a bit more about the 'public domain' part please? Would I be able to access it online, say, or would I need a password to access your online articles?

 

HB

Illegitimi non carborundum

 

 

 

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No I have not told the other trust of the disciplinary hearing. So much rests on me moving out of county (my partners children reside in the other county see and we need to be near them - they live with her ex).

 

No you would not have needed a password to access my site. But it wasnt advertised and you would have had to enter specific phrase or keyword into google to be able to find it at all. That was my argument regarding 'public domain' - that the public domain was the same public domain that my magazine entered (albeit the *potential* of the public domain of the internet is far greater). The content they are flagging up as inappropriate on my website was content that had been featured for six years in the spoof newsletter that I produced for the ward - which staff members would take home and circulate. A newsletter approved by managers and that had never had criticism in its six year life.

They also pointed out a picture of a gun used on the website for comic effect - simple absurd humour in the style of Peter Cook or Monty Python. They raised concerns about this. I pointed out an issue of my magazine from four years ago where the then Borough Manager, supplied a picture of a gun to be published in that, with a funny caption.

I mean, cant I argue that if my *managers* submit material, then they are setting a precedent? How can they flag up my usage of a gun for comic effect and not raise concerns that this has happened before by a manager? (Im not a manager, just a nursing assistant)

 

During the investigative interview, the senior nurs, when I asked him outright if he thought I would lose my job, said "No. You probably will be taken aside and have a stern slap on the wrist".

 

God I hope he's right. So much is going right in my life regarding plans to move to the other county and starting a new job. I hope it doesnt fall apart due to this hearing. Final Warning and such like, fine, but I being dismissed may have a negative impact on my new job.

I dont belong to a Union either - they never interested me as in my previous job, where i was on a three month fixed term contract for two years, they told me my employer *had* to make my post permanent due to the amount of times they renewed my contract but when it came to them acting on my behalf, they fell apart. So that experience with Unison put me off them, quite frankly.

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Oh, the website was produced at home, as was the magazine. They were never produced and published at work. The cost of printing them off became prohibitive which is why I thought scanning them and allowing others to access them on the internet was helpful. But because they featured pictures of staff etc, I was told this was wrong. (Pictures never showed staff in a negative light mind you. )

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Oh dear. This really isn't at all good. In a nutshell, yes, you could very easily be dismissed for this, and if you were I very much doubt that you have a case that would convince a tribunal that it is unfair in law. The issue is not just the websit - it is the publishing of the newsletter too. As soon as you "publish" something you put it in the public domain - publisging can be by a variety of means, but there is no doubt from your version of events that you have created this newsletter / website for circulation, and in particular to a wider audience than just for colleagues (not that had it been just for colleagues that would have got you off the hook). The problem with "spoofs" and "humour" is, as you have discovered, they are in the eyes of the beholder, and what you or others think of as innocent fun is not the view that everyone will take. Assuming this fun is directed at, or at the expense of, your employer, then I am afraid that having done this without the explicit permission, not a an individual manager, but of the employer, is very likley to be seen as, and upheld as, gross misconduct. The fact that a manager has contributed to the newsletter does not give the employers consent to the fact of the newsletter. The issue the therefore not about the internet policy, but "bringing the employer into disrepute".

 

The fact that you were not suspended is irrelevant - an employer does not have to suspend and in fact should not do so unless the presence of the employee in the workplace could prejudice the investigation. Given the circumstances here I cannot see any justification for saying that your presence at work would prejudice an investigation - I would imagine that simply telling you (if you needed to be told) that you should not publish further newsletters would have been sufficient.

 

Whether they will dismiss is a different matter of course. You may only get a warning, perhaps a final one, and I cannot see any prospect of them dropping the allegations or finding you not guilty. There has certainly been a decision that this may constitute gross misconduct - if there was any likelihood of dismissal not being an option, then they would not have worded the letter in the way that they did. So a dismissal is definitely on the menu, I'm afraid.

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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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Thank you Sarel. I have ten years good service and i hope that is taken into consideration. I will still bring up the fact in the disciplinary that Ward managers and staff read each issue of my newsletter and never brought any concerns to me, and that the content of those newsletters was the same of the website. If someone had come to me in those six years and said "Well, this is all very good but not quite what we are looking for. Please stop" then I would have. But no manager approached me in that way.

 

Oh well, fingers crossed it will be a final warning....*gulp*...

 

I wonder whether, as I do actually have another job to go to, whether I should just hand in my notice before my hearing.

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Thank you Sarel. I have ten years good service and i hope that is taken into consideration. I will still bring up the fact in the disciplinary that Ward managers and staff read each issue of my newsletter and never brought any concerns to me, and that the content of those newsletters was the same of the website. If someone had come to me in those six years and said "Well, this is all very good but not quite what we are looking for. Please stop" then I would have. But no manager approached me in that way.

 

Oh well, fingers crossed it will be a final warning....*gulp*...

 

I wonder whether, as I do actually have another job to go to, whether I should just hand in my notice before my hearing.

 

If it going to impact on your future then it is already too late - the time to have resigned would have been before an investigation started - at which point you wouldn't have known to do it! If you are even thinking of going down this route then you would need to be sure that the employer would drop all allegations and not mention it at all - a clean slate so to speak. But doing so is also a risk that they will keep to such an agreement - remember that "resigned pending disciplinary" is as bad as "dismissed" in the eyes of many employers.

 

Otherwise, I would suggest that pleading, remorse and anything else you can throw in (a tear or two may help!) isn't amiss. It is more likley to get a sympathetic reaction, and at this stage your strategy has to be to get sympathy - because defence isn't entirely possible since, with the ebst will in the world, and even if unintended, you did do it!

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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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Yes. I wonder if it would be in my interest to write directly to the Senior Nurse who will be chairing it, pleading for it to be dropped? Citing my year long struggle with my partner and our need to move to another county as her children live there, and finally I get a job down there where I start in a month or so, only to have all that ruined by this? And of course, explaining how sorry I am, how it was an error of judgement but I was misguided by the previous *acceptance* of the newsletter and a website seemed a natural extension of that.

 

I reckon I could word it well. Or maybe something like that is worth keeping for the closure of the hearing when they say "Any last words" or whatever! heh.

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You understand that this bit is a judgement and not legal advice? On that basis. if you are going to do it, do it now. Closing remarks means you have dragged a panel through a hearing and they aren't likely to be feeling charitable! I know this is awful for you and you feel bad. But speaking honestly, the vast majority of employers / managers feel just about the same about disciplinaries. If they are anywhere near decent human beings (and despite appearances to the contrary on sites like this, most are) it is as upsetting for them as it is for you. Therefore, they are more likely to respond to a good plea before the event rather than after it. I cannot guarantee it will work, because unfortunately some managers really are below pond **** - but in the public sector they are fewer in number than in some parts of the private sector. For what it is worth, I would throw in the amount of time it's taken to get to this point too. Make sure that your letter doesn't sound accusatory - you are asking for a favour, and the same rules apply here as anywhere else - if you want something then you may have to ask really nicely. Luckily, it can't harm any defence you put so nothing ventured... Good luck - and let us know how it turns out.

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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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Sound advice Sarel. I will work on the letter tonight and post it in the morning (I only have 11 days to go but hey, its worth a shot. I genuinely dont think I have anything to lose by this, just everything to gain). I know I can put myself across well and be humble, contrite, apologetic and most importantly, sincere. I *will* try.

 

Thanks again for the advice and I will let you know what happens...

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Sound advice Sarel. I will work on the letter tonight and post it in the morning (I only have 11 days to go but hey, its worth a shot. I genuinely dont think I have anything to lose by this, just everything to gain). I know I can put myself across well and be humble, contrite, apologetic and most importantly, sincere. I *will* try.

 

Thanks again for the advice and I will let you know what happens...

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Well, here is an update and it bring a little ray of hope to others.

 

I wrote a letter to the general manager who was chairing the disciplinary as

well as one to the senior nurse whom, seven months ago, I must have

riled enough for him to instigate a formal investigation. In both

letters I was humble, contrite, apologetic, and offered an

unreserved, unconditional apology for my clear error of

judgement in producing the website.

 

The disciplinary hearing was due in four days time. I arrive

at work for my night shift tonight and am me by the senior

Nurse who initiated the investigation. He takes me to a room

and tells me that after a long conversation with the general manager

and with the divisional head, they have decided to 'step down'

the investigation and I no longer have a hearing to attend.

 

They cannot just forget what has happened though and on the

reference for my new job it will say something like 'disciplinary

Investigation initiated but no sanctions imposed' or something

like that but let's face it, it's easier for me to discuss that comment

with a future employer than if it said 'disciplinary resulting in dismissal'

 

So thank you sarel for your sound advice and to anyone reading

this who faces a disciplinary hearing, writing a letter of apology

showing humility, regret and remorse for your actions, even

if it's just a week away from the hearing, may have a surprising

and positive effect.

 

Btw - sorry about the formatting. Sending this via an iPhone.

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I am pleased that you are now able to put this behind you. It isn't an ideal solution, but it is certainly a lot better than I had expected, and a very reasonable solution from the employer - and employers don't often surprise me, but it is nice to know the sometimes still can! This is certainly a better outcome than any form of warning. Good luck for the future.

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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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