Urgent help needed regarding Disciplinary action

[henrysmom]

I am starting this on behalf of my brother, who i'll refer to as A for ease and the witness as B.

 

He has worked for a company for the last 3 years with no history of problems. last month he was accused of stealing medication at work by a colleague who claims to have seen him use an asthma inhaler from a medical cabinet. He is an asthmatic and carrys and inhaler on him at all times, as is he a type one diabetic and carries a novopen and insulin kit at all times. i have been given all the paperwork regarding his hearing so i will put their points as concisely as possible.

 

The employee reported him 7 days after alleged incedent, saying that the reason for this was that in previous jobs staff kept personal meds with clients meds and B thought this was the case.

 

B insists that A took an asthma inhaler, used it, then replaced it.

 

B claims B was standing in a kitchen with A whilst it was happening, and long enough to be unoticed as A counted meds as part of a handover. B claims A did not see her there for the time period of A unlocking and opening a meds cupboard, taking out an inhaler, using it, putting it in, taking out blister tablets, counting them, putting them back. B drew a picture showing that she was approx. three to four feet away from him.

 

B claims to have roused A by turning on a kettle and says - quote - "i think i asked him if he wanted a coffee. he said no."

 

a member of staff in a seperate room claims to have heard A open the cupboard, remove and put back a basket, how long the cupboard was open for, but could not say if B was in the same room as A, and could not confirm B's whereabouts.

 

A has taken in his prescriptions for all his medications, and has agreed he did use an inhaler that morning but it was his own, as he does a lot at work as well as his insulin. he says that B was never in the kitchen at the same time as him. in the report an assistant manager says he took B to the meds cupboard to clarify what she claimed to have seen A use and she at first look briefly to the wrong place and then located a blue inhaler. the same kind A has on his person at all times.

 

Two coworkers from the same shift as A have said individually in thier interviews that A carries an inhaler, one of which said sometimes A leaves it in his car, sometimes it's in his pocket, the other stated that it has fallen out of his pocket before when working together moving a client.

 

B claims they have always had a good work relationship but in reality there is a slight history of A having to leave notes about things not done on shifts - A and B work opposite shifts and "incedent" happened in a crossover.

 

theres a lot of handwritten interviews, copies of codes of conduct and conversations in the pack they sent. in the conclusion where they request it goes to a disciplinary hearing the manager has stated "A denies B was in the kitchen, but B's evidence around where exactly the inhaler was in the cupboard is strong. I accept that B was in the kitchen."

 

she also states that co-worker claims A keeps inhalers in his car and plays the implication on the point being that he doesnt carry them on his person, even though the person said car AND on person.

 

Sorry, this is so long!

 

I dont see how A has a leg to stand on as the manager has stated her bias by stating in her conclusion that she "accepts" that B was in the room, and nothing about A has been "accepted".

 

There is nothing in thier correspondance laying out an employee ruling on personal medications and until this point we thought his boss, who he has had a great relationship would realise it was either a mistake by someone seeing something and making assumptions, or realise it was a case of unprovable he says she says. A implicitly says he did not use a residents asthma inhaler and i dont think for a minute he would or anyone would to be precise. but still, he has been on suspension since the end of november for this.

 

his hearing is on the coming tuesday and wether he was to lose his job or not he wont go back after this, but there is a real chance they are going to get him with a gross misconduct dismissal and i feel its madness, and it will hound him for the rest of his life, over an asthma inhaler. any advice please! im putting together a list of things for him to take and ask to try and make them see sense!

[papasmurf1cx]

"whilst it was happening"

 

What does B say happened? I am assuming A inhaled the inhaler but you don't actually say that. What is in B's statement?

[meekmeek]

wouldnt they needed to have done a inventory check to notice a missing inhaler. or atleast proved at the investigation stage that Original Posters inhaler was not on his possession before they could even try accusing him of using the inhaler from the medical storage shelf.

 

going straight to a disciplinary hearing without a priliminary investigation is not what the procedure is on the ACAS website. has there been a investigation. if so what was the result, what evidence was found.

 

witness statements alone cant lead to dismissals can they. not without proof of either multiple witnesses, or the item in question.

 

the point i trying to get to is imagine its a police case a guy gets arrested because someone accuses him of theft. no under caution recorded interviews just straight from the guys house, in police car to a court hearing.

 

doesnt seem right.

 

please clarify as i have been in a few unfounded/invalid investigtions /disciplinaries in my last job so my experience may help

Edited December 19, 2010 by meekmeek

[henrysmom]

The accuser claims he inhaled the inhaler, and accused says he did inhale an inhaler, but it was his own, of which he has produced prescriptions for and had other members of staff vouch for in statements (of which we have copies sent to us in the package) that they have seen him using it and carrying it at work. he has worked for the place for three years, the accuser for 12 weeks. Sorry for all the A/B stuff, i worry someone might recognise the issue and say something at his work.

 

they sent a big package of stuff to us by reg post and it has all the interviews with the staff and the accuser makes so many errors in thier accusation, for example she claims she watched him take the medication and do another job all whilst being in the same room within a few feet and not being noticed, and that it was only when she announced herself after watching all that time that he acted "startled and hurredly slammed a cupboard shut" yet she then says in an interview that she considered everything normal until six days later when she had a rethink. the accused had not had a great relationship with this person as he had to keep leaving instructions for them for not doing certain things they should have been doing in a comms book, but she claims they had a great relationship, even though they worked opposite shifts and she'd been there 12 weeks. he swears that he didnt do it and i dont think for a second a man who has his own asthma inhaler would use an inhaler beloniging to one of his residents, who he has looked after brilliantly and has been so commited to his job for the last 3 years. the problem is, from all the information they have sent including statements is that it comes down to his word against hers and he swears she wasnt in the room at any point, and she swears that she was, even though the person on shift at the same time said they dont know where she was. the boss wrote in the material that they had decided that she was in the kitchen, so her word was accepted and seems to me like she has made her decision, yet his word isnt. its hard, i have made a letter with all the discrepancies but im afraid to post it in case. but there are times in interviews within 24 hours of each other she adds bits in and makes herself sound like he's magic, such as saying he was doing something specific and taking an inhaler at the same time, and then in the next interview saying he was using two hands to do the specific thing that he was doing, WHILST taking an inhaler. its all so sketchy. the main thing i need advice on really now is that the disciplinary has been postponed, but it was only postponed as of tuesday this week. he was rosterd to work on xmas day but they started offering out his shift last week, before the hearing, thus making me think they have made a foregone decision without any proper investigation or disciplinery. i feel like he's been hung drawn and quartered already

 

they cant count the "puffs" on an inhaler, so its a word against word thing.

[papasmurf1cx]

Being hung drawn and quartered is the norm I'm afraid to say. Time and time again on the forum we see this. The only thing you can do for now is to attend the disciplinary and when the witnesses give their evidence to point out the problems in their evidence. Where there is impossible things happening at the same time get them to demonstrate it, hand over an inhaler and get them to do the disputed action at the same time. Prove that they are lying.

 

If he gets sacked because of tainted evidence your only recourse is to the ET. Is there any outside connection between management and this witness? Sometimes managers 'place' friends and relations in key positions or just find them jobs.

[henrysmom]

so heres an update.

 

My brother is giving in a statement pointing out discrepancies and to see if they will let him resign so he doesnt get a gross misconduct mark on his head. We figured that this might be the only way as it appears they have made up thier minds already, especially as they were offering out his shifts that he was down to work after the date of the disceplinary, (whilst he was suspended but before the disceplinary was set, if that makes any sense) thus assuming that he isnt ever coming back. also, a fellow employee of his who had been on the same suspension at the same time for taking paracetamols for a headache out of the meds cupboard has been reinsated with no disceplinary. his manager even had the cheek to call him and tell him she was working on "getting him back to work as fast as possible" as one of his residents has gone downhill whilst he's been gone even though in the ref. material she's the one that elevated it straight to disciplinary. the problem is he is an inarticulate 20something man who's skills are not talking in public, he gets defensive (in an emotional, not angry way) and doesnt get his points across well, and he's not allowed anyone in with him in the hearing, except an employee, but they have interviewed all his colleagues and twisted thier words against him so how can they expect him to ask one to go with him to the hearing?! he's battled with depression all his life and this job made him so happy, and i'd never seen him so responsible, and you know, grown up, for the last three years. we are going to go to Citezens advice and see if they can help. i have no idea about outside influences, the accuser had only been there 12 weeks.

[Sidewinder]

Personally, and I stress this is just me, I wouldn't even consider resigning. If they believe his guilt, and in the type of business they are in, they would be duty bound to state that your brother left whilst the subject of a disciplinary investigation. They could also, if they so wished, hold the disciplinary in his absence and dismiss him anyway.

 

Now if he is not guilty of the offence he has been charged with, then this must be the approach that he has to take. There is also the matter that another worker has admitted doing exactly the same thing, and has been allowed to continue working. The disciplinary Code requires that any sanction given to an employee charged with misconduct must be proportionate and in line with that given to others in a similar situation. They are leaving themselves open to a legal challenge if they choose to dismiss.

 

If it were me, then I would fight and lay out the facts. Your brother carries his own inhaler, and there would be no need for him to borrow somebody else's. he has a good work record with no previous stain on his character. the witness is mistaken, and cannot possibly have seen or heard an inhaler being used from the cupboard as this simply was not the case. The witness has cause to complain about your brother due to being pulled up on occasions about shortcomings in their work. Your brother is devastated to have been put in this position and at the suggestion that somebody with only 3 months service can be jeopardising 3 years worth of good service.

 

It rarely pays to resign!

[papasmurf1cx]

I agree with sidewinder here, DON'T resign. Try this. Write a letter to the company detailing the problem he has and state that it is a disability ie his ability to concentrate is compromised, he will panic because of his health problem etc etc. Ask for a reasonable adjustment to their Procedure to let someone other than an employee who is conversant with his problem to assist him.

 

This will be enable either someone capable to be present and to represent him. If they refuse and they sack him then you can raise the issue of discrimination / failing to give reasonable adjustments / perhaps even Unfair dismissal as the procedure was flawed. Obviously legal advice will be needed but at least you will have gone through with it, which is what a ET will expect you to have done.

 

Write the letter, don't give up you will regret it is you do.

[Sidewinder]

Fantastic advice above. Definitely worth a try!

[henrysmom]

Hello everyone, thanks for all the advice, i told him not to resign, and he went through with the disceplinery and suprise suprise the found him "guilty" and have dismissed him. The reasons they have given, without quoting the entire letter is basically there is "no reason" for the accuser to lie. there is no proof of anything, no measurements of the "stolen" medication and no eyewitness other than the word of the accuser and the word of my bro. but yep, they have dismissed him. they bamboozled him in the meeting by asking him "if C********* was in the room what would you have done" and he said "i would have told her that i was taking my inhaler and what i was doing" and they have magically twisted it in the letter to him saying he "should have told her what he was doing" . they also have placed great emphasis on an issue that they have CHANGED POLICY on since the incident with my bro happened where staff would check meds, then sign for the keys so they knew they were signing for a full med set, but the written policy was that keys should be signed before counts, which none of the staff did so if there were discrepancies in the meds they were not responsible, the prior staff member would have been, and they have used it as an admission of guilt.

 

he is seeing an employment lawyer tomorrow and we are trying to get an appeal. i think the main thing is that they have dismissed him and said he may have to go on a register for stealing meds, for "stealing" a med that they cannot measure and therefore have NO PROOF?!!! i am so frustrated, i literally thought that when it got to the top they would think it was crazy. even his boss broke down at the hearing and cried her eyes out over it when my bro told them how depressed it had made him and the fact two of his people he looked after had died whilst he was suspended and he never got to comfort them or their families which he'd dealt with for three years. i am literally shocked it has gone this far, the word of a trouble making person who's been there five minutes over him, and with no evidence?? the person who made the decisions said that his leaving of notes asking the night staff to carry out proper procedures "were not offensive and obviously did not read to cause offense" which is why they believe this woman was not pre-motivated.... I'd have thought it was obvious that he is a nice guy but needed to tell people on numerous occasions to do thier jobs properly, and anyone being told they werent doing things they should repeatedly can take offence to the nicest note, especially if they think he's being a busy body?! sorry for the extra rant, i just want to go arrrrrgggghhh!!!

Edited January 31, 2011 by henrysmom
typo galore :s

[papasmurf1cx]

Sorry it went that way. What happened with getting help in the hearing?