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Suspended after allegation of theft


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I have to admit, your friend might have played the "back history" a bit more wisely. Even when your manager is a p**t, it is best to stay on the right side of the chain of command and not do things or say things without their say so. And it looks very bleak if they had already asked the manager and he said no. Did your firend know this at the time - and if not would the other two clear him of this bit? It doesn't change the general situation, but having countermanded a direct instruction of the manager - well, that just makes it worse.

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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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I have to admit, your friend might have played the "back history" a bit more wisely. Even when your manager is a p**t, it is best to stay on the right side of the chain of command and not do things or say things without their say so. And it looks very bleak if they had already asked the manager and he said no. Did your firend know this at the time - and if not would the other two clear him of this bit? It doesn't change the general situation, but having countermanded a direct instruction of the manager - well, that just makes it worse.

 

Hi Sarah ,

During the first investigatory interveiw he did ask that they look into the behaviour of the manager in question , it seems as if this manager had become increasingly paranoid , sneaking around listening to conversations , saying he was unavailable when the phone rang when he clearly was , that sort of thing . The general feeling was that he wasn't coping very well .

He now has been told to attend a further investigatory meeting next week as other issues have come to light . Are they obliged inform him what the allegations are going to be before he attends this meeting ?

My feelings are that they are going to try to pin more offences on him to make his dismissal absolutely solid , or hopefully they've looked into this manager conduct .

In answer to your question , yes he did know that his colleagues had been refused the use of salt 3 weeks previously but in his defence weather conditions had worsened and the same manager had sanctioned the use of salt to another employee because of this

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An employer does not have to disclose in advance the contents of an investigatory meeting - only a disciplinary. So we shall have to see what comes to light.

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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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The plot thickens , amazing how something so simple to resolve can spiral into something so serious in such a short space of time .

Thats 3 employees that are into their 4 week of suspension , I suppose a dismissal will be on the cards to justify the time management have spent on the investigation . Crazy .

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  • 2 months later...

UPDATE

 

Just thought I'd post and let you know how things are progessing with this case , yes its still ongoing ......well all three were dismissed for gross misconduct (theft) , all three have appealed and had one appeal meeting (about 4 weeks ago) which was adjourned so the company can investigate further . Supposed to have another meeting last week but postponed again and now the person chairing the meeting is now on holiday . I suspect they may be attempting to run the clock down so an ET1 claim can't be put in .

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Hmmm.. I am of the opinion, that your friend has every right to see all the evidence against him, including the witness statements, when he is called back into work to give his/her side of the story.

 

In the case of Spink -v- Express Foods Limited [1990] IRLR 320 it was held:

"It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case."

 

Notwithstanding, to be allowed to see the two witness statements, which have been lodged.

 

Furthermore, as everybody has been said, to be honest. In this instance, as the employer is relying on the witness statements provided by other employees', I am wonder whether your friend should lodge a witness statement as a [statement of truth] prior to going to any hearing with his employer. That way the [onus] is on the employer to act fairly and impartially, and act [reasonably] in light of all the evidence.

 

Whilst the employer is acting upon information of an [allegation] the employer still has to observe the implied term of mutual trust and confidence and not 'act' in a manner, which is likely to destroy that trust and confidence.

Edited by Sidewinder
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UPDATE ,

 

Well , he has now had a load of paperwork from the last investigation (25pages) and has a second appeal meeting later this week . He just has to sort out whats relevant to the original disciplinary as they've presented a load of statements from ex-colleagues basically slagging him off . It seems as though they've made up their minds to uphold the dismissal and are chucking everything including the kitchen sink at him .

What do you reckon the best course of action is ?

Confront them about the new statements stating there was obviously a long term problem that management failed to address as no-one approached him at anytime during his 11yrs there to complain about him or his conduct .

Or just refuse to talk about any incident not relevant to the original disciplinary .

 

Thoughts please .

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Are the statements relevant to the accusation of misconduct, or are they just a general character assasination?

Was he presented with this evidence before his original disciplinary? They can't introduce new evidence at the appeal, it's irrelevant.

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Are the statements relevant to the accusation of misconduct, or are they just a general character assasination?

Was he presented with this evidence before his original disciplinary? They can't introduce new evidence at the appeal, it's irrelevant.

 

Hi El ,

 

Haven't seen it myself yet but from what I can gather 99% is just irrelevant drivel ,which he is genuinely shocked by, from ex-colleagues that has absolutely nothing to do with the original accusations and has now been produced after further investigations that took place after his first appeal against the descision to dismiss . So yes , its a general character assasination and wasn't presented at the original disciplinary .

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Completely irrelevant then. They're actually rather discrediting themselves by doing this. If they think the original charge was sufficient to warrent dismissal, they should be sticking with that. Trying to bring in additional accusations at this stage implies that they don't think the original matter was sufficient.

He needs to reject the new allegations completely, don't be drawn into answering them.

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Completely irrelevant then. They're actually rather discrediting themselves by doing this. If they think the original charge was sufficient to warrent dismissal, they should be sticking with that. Trying to bring in additional accusations at this stage implies that they don't think the original matter was sufficient.

He needs to reject the new allegations completely, don't be drawn into answering them.

 

I thought perhaps he could use it to his advantage , been there 11yrs , no problems , no disciplinarys , spotless record , now all of a sudden a number of different issues have been raised that management have failed to deal with and they are now attempting to use these new accusations to further enforce their decision to dismiss .

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Yes, it's very inconsistant. Points towards there being an ulterior motive.

 

It seems clear to me that the investigation undertaken after the first appeal meeting was an exercise to gather further statements totally unconnected with the original disciplinary attempting to paint the accused in a bad light and giving them good reason to uphold the decision to dismiss . I think my mate should go out all guns blazing and accuse them of serious managerial failings .

The only thing that has remained consistant are his , and the 2 other colleagues dismissed , version of events . The witness statements from other colleagues used to dismiss him have changed several times .

Would it be wise , as he no longer wishes to work there after what has happened , to make an offer not to take it to Tribunal if they uphold the decision to dismiss in return for a reference and statutory notice pay ?

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No. I woulldn't start making offers. I think he should see the appeal process through and then make an application to ET. I think they would be likely to seek to settle rather than go to ET, for financial reasons apart from anything else, and he should get more than notice pay and a reference.

I'm not saying he's got a perfectly solid case at ET, but there do seem to be inconsistancies in the way they've dealt with the matter, not least in the way they're throwing irrelevant crap at the appeal stage.

He had 11 (is that right, off the top of my head?) years unblemished service after all. Was dismissal within the range of reasonable responses for what he did? Arguably so, but not clear cut.

I think he needs to be very well prepared for the second appeal. Write a statement to present to the appeal, forcefully itemising the flaws, refer the person chairing the appeal to it and say nothing.

Don't allow the employer to turn the appeal into another disciplinary, that's not its purpose. The appeal isn't a retrial, it's a review of the evidence.

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Thanks El , I will pass on the advice ....I think he's just fed up with it all now , this started back in january and he believes its already cost him an employment opportunity elswhere and is keen to get this done and dusted ASAP . Although he's more than willing to take them to an ET it just means it dragging on for months .

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UPDATE

 

2nd Appeal meeting went well ( mind you he thought the 1st one went well also)

It transpires that the manager accusing him of theft and undermining him has had a problem with the 3 dismissed for well over 6 months and has spoken to the HR department on no less than 8 occasions about them . He has not confronted or spoken to ( nor has HR) them at anytime about any problems in the workplace or their conduct .

After taking statements from all the emplyees in his section they've cherry picked 4/5 that painted them in a bad light and basically accused them of being bullies .

The employees were all asked questions along the line of " Do the 3 sacked intimidate you in anyway" that sort of thing .

My mate thinks he has got his point across (with help from another manager who attended as a witness) that the manager is at the root of most , if not all , the problems as he takes everthing personally and is very paranoid about anything said in jest or workplace banter .

The same manager has stated that he told my mate there was a blanket ban on anyone taking company property but my mate was on annual leave on the date he was supposedly told (my mate wasn't present at the meeting when the blanket ban was put in place , nor was the manager who attended as his witness) .

Only trouble is that he now has to wait yet again for a final decision . The person chairing the meeting did say that he knows that he will be going to make a claim for unfair dismissal if he doesn't get the right result . He has 3 weeks left to make an ET claim before it times out .

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So has your friend at any time said that he intends to make an application to ET if the appeal(s) are unsuccessful?

If not, why did the appeal chair say that? Subtext admission that they know they're in the wrong?

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So has your friend at any time said that he intends to make an application to ET if the appeal(s) are unsuccessful?

If not, why did the appeal chair say that? Subtext admission that they know they're in the wrong?

 

No El , he hasn't said that he will make an ET claim but the 3 dismissed have got a solicitor onboard which the employer has obviously picked up on . They have strenously denied the allegations from the outset and have , with the help of the solicitor , put forward a pretty good case that the decision was unfair ,

Reading between the lines i think they know that the dismissals were unfair but events have spiralled and they have dug themselves into a hole now .

The 2 other colleagues surely have a cast iron defence ....... they asked their team leader/supervisor if they could take some salt in order to enable them to get to work during atrocious weather conditions , he sanctioned its use .......they have then been dismissed for stealing it . No-one in their right mind could say it was theft .

Whats then happened is allegations of undermining the manager and bullying .

There were obviously problems that the manager or HR has failed to deal with and that the 3 dismissed know absolutely nothing about and were given no opportunity to correct .

So serious managerial failings all round leading up to their dismissal .

.

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UPDATE

Second appeal hearing resulted in their dismissals being upheld .

 

In the letter they do refer to him as being the Deputy Manager but apparently any authorisation he had regarding employees using/borrowing company property was taken away from him during a meeting in August , a meeting he , and the other 2 dismissed , were not present at . No policy/nothing in writing regarding the change but his manager , who they admit has 'communication problems' , supposedly told him a week later that there was a blanket ban on any employees taking/using any company property .

Strange as the manager from another section who attended both appeal meetings as his witness hadn't heard of this blanket ban either .

They are now in the process of filing an ET claim.

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