Suspended for gross misconduct Pls help

[pistachio]

How completely horrendous. This is all way beyond me but I did just want to say I think you've been treated appallingly. It just seemed like constructive dismissal to me, you do the same as you've always done, then all of a sudden you should have filled out some form. Anyway just wanted to say I hope the new job is a lot better.

[stueyxx]

How completely horrendous. This is all way beyond me but I did just want to say I think you've been treated appallingly. It just seemed like constructive dismissal to me, you do the same as you've always done, then all of a sudden you should have filled out some form. Anyway just wanted to say I hope the new job is a lot better.

 

It beggars belief I have now resigned due to breach of lack of trust & confidence , have also mentioned that I could not stay employed by a company who condone and try to cover

up what I believe to be criminal activity in the form of falsification of health+safety certificates.

 

I will now first try to negotiate with them in form of

compromise agreement if no then it's off to tribunal even if I don't win the truth will come out ..

 

Yes I am really enjoying my new job thanks

 

.

[Atlas01]

I don't see you winning anything

 

You were suspended for 6 weeks (that's actually not a long time for a suspension) suspension legally is a neutral act meaning it cannot be used on it's own to prove detriment or breach of trust/confidence etc.

 

Your old employer will argue that after this "neutral act" occurred they considered your case and the points raised and issued you with an appropriate warning (you have not stated what the verbal was being issued for), verbals can be given at the end of a suspension, the employer would actually twist this low level warning against you for a claim stating it shows they considered the matter properly.

 

You have not as i read it lodged any grievance in relation to the falsification of the training record or made any type of protected disclosure. If you had been disciplined for reporting this to the HSE then you may have an argument but unless i'm missing something you are still at the "threat" stage.

 

In addition did you actually speak to an employment lawyer at the CAB, i'm not aware of them having this facility as a matter of course and also not a great fan of their advisors who in my history of representing people have caused me no end of headaches with terrible advice for potential dismissal cases. I could be wrong here but it's worth checking as i've had many a conversation with members who have been told by their laywer at the cab (in reality an advisor) something stupid. My apologies if this is not the case but make sure for your own benefit.

 

As everyone here knows constructive dismissal is near impossible to prove, having another job to walk into also seriously hampers this type of claim as it may be deemed your chancing it because you have another job. If you resigned AFTER getting the other job this will count against you.

 

If i was you i'd walk away from this and concentrate on your new job. If your still chomping at the bit over the falsification then put a complaint into the HSE, I doubt they will come riding in on a white horse to smite your old employer, i've seen much worse in H&S terms over my time and unless someone is seriously injured the best they will do is probably issue advice to your employer. For all you know they could be taking action against whoever falsified the record.

 

Move on and leave this one behind as you are lucky enough to have found another job.

[stueyxx]

Thankyou for your reply as I have said I take all advice on here and research it .

 

Just to start on this

 

Discrimination

As got said by my manager in disciplinary hearing

" If I was a new starter you would have had some sympathy"

Implying that me would have dealt with someone else more favourably.

 

Having regular panic attacks

Informed 2 managers and HR manager of these

 

Not making reasonable adjustments

IE training

 

Written Warning

Been off ILL despite me sticking to company policy, given permission for company to access medical records, going to employers designated doctor on regular intervals, not forgetting having a home visit from employer..

 

Employer failed to make reasonable adjustments to help remove a substantial disadvantage I was experiencing as a result of illness .. Refresher training would have assisted me in being able to identify hazards this left me at a major disadvantage.

 

Risk assessment : after 6 month off with a severe mental illness this should have been done.

 

Treatment could not be justified : could not uphold allegations , if they did as stated on my disciplinary letter if any allegations made against me was upheld then it would result in summery dismissal. ( I am still not in receipt of outcome of disciplinary in the form of letter so don't know what verbal warning is for)

 

Providing training

 

Put back my own request to see company doctor as doctor stated in final report he would be happy to see me at my request if need arose.

 

Just one of these alone would be sufficient to have discrimination case. As my condition now would be anticipated to last 12 month I am now protected by DDA.

 

This is not to mention the H+S certificates, deliberately lying on statements made against me during investigation which I produced photographic evidence to prove these lies.

 

So without sounding patronising I certainly won't be walking away from this. Yes I agree in 99% of the time it is advised to put a grievance in but as I am not looking to settle a dispute or get my job back I really don't see how this will help my case. Once again I really do appreciate your time in responding to my post and eagerly await your response. It really helps me to hear other sides to the story

[honeybee13]

Stuey, have you spoken to the EHRC to see what they think about the discrimination case? They should give you a good perspective on it.

 

My best, HB

[Bigredbus]

Hi,

 

The simple fact that they investigated your incident with a possible dismissal for outcome, and eventually issued a verbal warning instead says a lot about their fear of being confronted with their own mistakes, and falsifying official documents is a pretty big one!

 

If they were to enter into a Compromise Agreement with you, don't you think they would be admitting liability then?

 

Keep us informed of your next step... Thanks

[stueyxx]

Hi I will keep you posted , if they now accept the CA I presume in the terms of the agreement that they will not allow me to bring any allegations against them.. Just want a quick resolve to all this so I can move on with my life and focus all my energy on my new position

[honeybee13]

Hello stuey. I may be speaking out of turn here, but I suspect that for CA you could read 'gagging order'.

 

My best, HB

[Bigredbus]

Hi,

 

Indeed... they will integrate a clause preventing you to both bring a case against them for any reason, present and future, and a clause preventing you from disclosing any possibly damaging information to a third party.

[Motorvating]

As well as being a National shop Steward, I am also the National Union Safety Representative Coordinator and manage a national team of Union safety Reps, so have a little knowledge and experience in matters like yours.

 

First of all I have to agree with you about mental illness as is is not recognised by much of society; you can see a broken arm, but you can not see a broken mind.

 

If you have been off work for 5 months, I imagine you have been ill for a lot longer. If you have been suffering with this condition for a year or more, and it is documented with your doctor, you may be covered under the Disability Discrimination Act (DDA)

 

The Health and Safety at Work Act 1974 states your company has a legal duty of care towards you.

 

The employer's duty

 

All employers, whatever the size of the business, must:

 

• make the workplace safe
  
• prevent risks to health
  
• ensure that plant and machinery is safe to use, and that safe working practices are set up and followed
  
• make sure that all materials are handled, stored and used safely
  
• provide adequate first aid facilities
  
• tell you about any potential hazards from the work you do, chemicals and other substances used by the firm, and give you information, instructions, training and supervision as needed
  
• set up emergency plans
  
• make sure that ventilation, temperature, lighting, and toilet, washing and rest facilities all meet health, safety and welfare requirements
  
• check that the right work equipment is provided and is properly used and regularly maintained
  
• prevent or control exposure to substances that may damage your health
  
• take precautions against the risks caused by flammable or explosive hazards, electrical equipment, noise and radiation
  
• avoid potentially dangerous work involving manual handling and if it can't be avoided, take precautions to reduce the risk of injury
  
• provide health supervision as needed
  
• provide protective clothing or equipment free of charge if risks can't be removed or adequately controlled by any other means
  
• ensure that the right warning signs are provided and looked after
  
• report certain accidents, injuries, diseases and dangerous occurrences to either the Health and Safety Executive (HSE) or the local authority, depending on the type of busies
  

When you had your return to work interview, as part of your managers obligatory Health and Safety duties, they have to ensure your H&S training is up to date, and they have to perform a risk assessment on you to ensure you are capable to work safely, and in your case the medication should have been looked at in detail.

You have raised the issue of updating your H&S to your manager, and that has been ignored.

 

You also have H&S obligations to your company and those around you: You failed to perform a risk assessment when working I.e. you failed to raise the issue of the cable board being missing, and failed to escalate to your manager about the cable being on show, however if others where working in the area then it must have been known about, and if so, why did the local manager not raise this as a Health and Safety issue.

 

at the end of the day, the business owns the Health and Safety, and although you failed to perform a risk assessment, they are at fault because they have not updated or refreshed your H&S training, even after you asked for it, failed to provide a safe environment to work in because of the missing cable board and cable on show.

 

The Permit to Work is a Risk Assessment, which we all have to do before performing any work we do, and that can be a quick scan of the area, or a detailed assessment. the fact of the matter is, no accident happened because of your failure to perform a risk assessment, so is not gross misconduct, so should only warrant refresher training and a verbal warning at most.

 

As you no longer wish to work for these people, you have nothing to lose, so if you feel you are up to it, I would submit a grievance for Bullying and Harassment, breach of the Health and Safety at work Act 1974, and if you have been been mentally ill for a year that is documented with your doctor, discrimination under the Disability Discrimination Act. By doing this you will stop the discipline case in its tracks as your grievance will have to be heard first.

 

Business breached the Health and Safety at Work act 1974:

Failed to provide a safe environment for you to work in

Failed to provide H&S training after your prolonged absence

Failed to perform a risk assessment of you by a capable person

 

Bullying and Harassment

Blamed you for company failings

Setting you up to fail by not providing H&S training

falsifying formal records

Unreasonable use of the discipline Procedure - gross misconduct for a minor lapse of H&S that did not result in any accident is unreasonable. the axle caused the breakage, not your failure to perform a risk assessment.

 

Disability Discrimination act 2010

This discipline is happening because you are mentally ill, and had prolonged time off work. they have using a minor H&S failure to discipline you out of the company, when in reality this is not gross misconduct, however their H&S failing are major failings.

By not understanding the side effects of your medication, and state of mind, they have failed to make reasonable adjustments to your medical condition.

 

 

DO NOT GO INTO ANY MORE MEETINGS WITHOUT AN ASSOCIATE and if possible, take a Union rep in with you. Ask for all the minutes and notes of the investigation, and be aware that you can challenge these notes, and may be able if reasonable to interview those that have made statements, and call in your own witnesses. scrawl through all the notes, because this is where business traditionally cock up, and enable us to win our cases. really go to to town over the falsifying of the records, and advise them that this is fraud resulting in deformation of character. Do not allow them to dominate any meetings, and stick doggedly to the questions you want answered, and make sure your associate minutes the meetings.

 

All the information you need can be gotten form Direct.Gov web site, and search on this site for:

Mental Health and the Disability discrimination act

Bullying in the workplace

 

Also google the Health and Safety at Work act 1974

 

You really need to get advise from an experienced Trade Union Rep, or go and see a solicitor who specialises in employment law, otherwise you will be totally out of your depth.

 

You are right about the business wanting rid of use by their use of gross misconduct policy for a minor infringement.

[stueyxx]

Thankyou so much for taking the time to reply to my thread it is really appreciated.

I am now in receipt of the warning issued to me and I am once again left astounded at the ignorance of these so called managers.

I will list some of the literature enclosed in my outcome letter.

 

I have looked at the three documents to ascertain if you have requested the training and I can find no evidence of this. Therefore I do not believe that you did ask for retraining..in response I could not have made it more clearer on these documents I even specified that I was not confident and did not want to put my name to any permit to work or H+S documents.

 

2) whilst I appreciate that you had 6 months off work prior to the accident , I have no reason to believe that all the training the company has given you was forgotten due to your illness or absence. You did not tell me that and provided no evidence to suggest that your memory in respect of training was forgotten due to illness. I note that you remembered how to drive the loading shovel. I therefore do not accept that your memory was impaired.

 

In response- ha do I really have to lol , well if I must , a risk assessment of me and my condition would have answered this as the main part of a mental illness is that it impares your memory.. I also will now ask for this manager to produce training certificates with dates attended for working with disability in the work place. Surely after making such presumptions on my illness he must have had some sort of training.

 

Mr x was questioned and he confirmed that the training took place on the date in question. I therefore believe his version of events as I can see no reason for him not to tell the truth..

In reply- I have written evidence off my witness and run through the the goings on on that day and it would have been impossible for me to do it that day. Also I called another witness who could have confirmed that the training took place after the incident but he conveniently was unable to attend. The company then told me they would go and question him , this did not happen and nobody approached him about this..

 

I also made an allegation that my 1st aid certificate in my file was false. As I was off sick on this date. And in my response to this by the company: I have investigated this point and the certificate was sent in error, I will arrange this to be removed from your file. In any case this is not relevant to the disciplinary.

 

Also the minutes of the meeting are a waste of time, luckily I had a colleague who was taking his own minutes of the meeting and the difference is amazing.

 

My condition has been developing since October last year however as it is now anticipated to last over a 12 month period I will be protected by DDA. I have had this confirmed by a solicitor .

[Motorvating]

This is the norm, the business has shifted the blame onto you. Do not accept this, challenge it through the grievance procedure.

 

even if you did not ask for the H&S training, it does not matter because the responsibility is on the business to provide any refresher training that you require, and that is written down in law, which they have ignored.

 

You are correct, the business has to perform a recorded risk assessment of you when you returned to work, as no such risk assessment is available, it has not been undertaken, if it had you would know because you have to sign it.

 

You need to get statements from your witnesses, get them to sign that it is an accurate description of events, and then provide those statements in the grievance.

 

If you are covered by the DDA, you have their nuts squarely in your hands, now is the time to apply pressure through a grievance.

 

The secret to winning a formal case is preparation, so you have to put some effort in to put your case together.

 

Use these web sites for legislation and good practice

Direct.gov

ACAS

 

Understand relevant legislation, which you can find in:

Health and safety at Work act 1974

Disability discrimination Act 1995

The Management of Health and Safety Regulations 1999

[stueyxx]

This is the norm, the business has shifted the blame onto you. Do not accept this, challenge it through the grievance procedure.

 

even if you did not ask for the H&S training, it does not matter because the responsibility is on the business to provide any refresher training that you require, and that is written down in law, which they have ignored.

 

You are correct, the business has to perform a recorded risk assessment of you when you returned to work, as no such risk assessment is available, it has not been undertaken, if it had you would know because you have to sign it.

 

You need to get statements from your witnesses, get them to sign that it is an accurate description of events, and then provide those statements in the grievance.

 

If you are covered by the DDA, you have their nuts squarely in your hands, now is the time to apply pressure through a grievance.

 

The secret to winning a formal case is preparation, so you have to put some effort in to put your case together.

 

Use these web sites for legislation and good practice

Direct.gov

ACAS

 

Understand relevant legislation, which you can find in:

Health and safety at Work act 1974

Disability discrimination Act 1995

The Management of Health and Safety Regulations 1999

 

thanks everyone For your advice on this matter your contribution has been invaluable to me. I can't believe I turned this round with your advice.

 

I am now in receipt of a compromised agreement all I need to do now is take it to a solicitors and get it signed.

 

I can now completely focus my efforts on my new position. The CA was a bit less than what I asked for but I knew it would be that's why I asked for more.

 

Considering 6 weeks ago I was facing the prospect of summary dismissal and no job . To completely turn this around took alot of hard work , research and time I feel it has now all been worth my while.

 

Once again thanks guys/gals . I'll buy you all a drink x

[honeybee13]

Great news, stuey, well done you and the guys. Mine's a half of shandy please .

 

My best, HB

[Bigredbus]

Shandy, Bee?... Shandy?... Isn't there some misspelt word?... You meant Brandy... didn't you? :-P LOL

[honeybee13]

I don't drink spirits, BRB . Virtual champagne is always well received though.

 

What about you, a litre of diesel?

 

HB x

[Bigredbus]

LOL

 

You know what diesel (also called goudron, mazout, depending on the region/locality) is in France? LOL... Pastis et Coca-Cola! So, yes... please! I will have one of those!

[Motorvating]

You now know why Unions are so invaluable in the workplace, so advise you join one that represents the industry of your new job.

[honeybee13]

LOL

 

You know what diesel (also called goudron, mazout, depending on the region/locality) is in France? LOL... Pastis et Coca-Cola! So, yes... please! I will have one of those!

 

Sounds terrible, can you really drink that? Goudron is tarmac, isn't it? Must be the colour .

 

HB x

[Bigredbus]

Yes goudron is tarmac... and it's due to the colour, indeed... It's not as terrible as it may sound!... Actually quenches your thirst! [This has nothing to do with the content of this thread... ]

[stueyxx]

Yes goudron is tarmac... and it's due to the colour, indeed... It's not as terrible as it may sound!... Actually quenches your thirst! [This has nothing to do with the content of this thread... ]

 

Ha Ha you guys name the drink and I'll get it , if your ever in Liverpool let us know yeh..

 

Yes I have most certainly learned to join a union

[hells81]

Sounds as though your employes is guilty of a major breach of contract. Speak to Acas, they will help you all they can.

 

Without goin into to much detail I have been off work ill with a mental illness for past 5 month , all of which was supported by both my GP and the company's designated dr.

 

On my return to work I went through a phased return as advised by the company dr.

 

When I returned to work I clearly expressed my concern about missing so much training both on plant applications and h+s training as I know how fast things move forward on both accounts.

 

My line management agreed to this and before I returned to my normal position my line manager stated on my return to work interview form that I was to be brought up to speed with h+s changes and to refresh my knowledge of h+s .

Through a health + Safety refresher course

During my phased return to work my line manager stated that on the 2nd week I was to be trained in h+s as this is by company policy meant to be done periodically .

 

This was not forthcoming and left me with a distinct disadvantage on my return to my normal duties after 4 days I got suspended for serious breach of h+s causing damage to company property.

 

Basically I was driving a JCB loader shovel and whilst in operation the back axle snapped and subsequently broke the loading shovel.

 

I followed company reporting procedure by informing my line manager, he then took the lead in the incident and arranged for the shovel to be repaired.

 

The company are alleging that I breached H+S by me clearing up debris with the loading shovel which are outside my normal duties therefore I should have filled in a permit to work form. I have done this task on numerous occasions in previous years and have never had to fill out a permit to work so obviously the policy had changed during my time off.

 

I feel that if I had been able to update my existing skills on H+S as requested by myself due to been off ill for such a lengthy period that the mistake would not have happened.

 

There is a lot more about my illness that I could go into I.E I am currently under going physciactric therapy to assist and help me in my recovery, which the company as directed by there own designated dr. are meant to be assisting me in . My illness just doesn't get understood by alot of people and most people think it's just an excuse to have time off. I feel this is what the management team feel but can assure you that it is a living hell.

 

Just not sure how I should approach the inevitable disciplinary hearing ..being off work for so long and due to lack of training and the companys failure to stick to the return to work agreement that both me and my employer signed as what will happen over the weeks of my phased return.

 

Also due to my illness as with all mental illnesses you become extremely forgetful and the side effects of my medication clearly state that loss of memory can occur..

 

Maybe the blame should lie with management for not doing a risk assessment on me and maybe that after 6 months of not doing any work to allow me to run a plant where I am responsible for my own and other peoples health and safety that they have abused there duty of care

[honeybee13]

Hello Hells. If you read on through the thread, stuey's issues have been resolved, fortunately.

 

Stuey, here's a challenge for you if you have time. Can I have a picture of a glass of champagne please? I'll have a look for BRB's 'Boys from the Black Stuff' drink later.

 

HB x