gross misconduct mitigating circumstances

[be96erj]

Hi forum,

 

I'm not sure where to start. I'm currently on restrictions at work as I'm in the process of going to a tribunal for gross misconduct. The misconduct being common assault. I deny this.the police looked at the matter and decided not to proceed with the matter.

 

This is a really complicated case and no doubt I'll have more questions later, but would anyone be able to tell me, if or when I'm found guilty at the employment tribunal, can I use the following mitigating circumstances

 

I was under tremendous stress as my then pregnant wife was told by doctors that our baby could be born severely disabled. thankfully this turned out to be wrong, but it made me very depressed and anxious.

 

I was on very strong antidepressants and beta blockers for anxiety. The meds would have made me act in a way I would not normally have ever acted. However I still deny common assault.

 

My wife has also had the that of redundancy which has further stressed me out.

 

Would the above be considered? If so, at what point would it be mentioned? Before or after I'm found guilty.

 

I'm also on restricted from interacting with members of the public. However my line manager has recently asked me to deal with one member of the public. Would this not fly in the face of what the tribunal is trying to do? how can the tribunal seriously find me guilty if the company are allowing me to now interact with the public? I can't be that much if a threat if I am now being allowed to meet the public. And if they do find me guilty, surely if these members of public find out my predicament they could potentially sue my employers for putting their safety at risk.

 

I hope this makes sense. I would really appreciate any advice.

 

Thanks

[becky2585]

Hello

 

I find your situation a little confusing I'm afraid!

 

You say you're on restrictions at work but going to a Tribunal for a gross misconduct issue. Are you claiming unfair dismissal against your former employer, but this is having an impact on your current employment, or is it the case that you're going through a disciplinary process and a "tribunal" has been formed as part of this (namely a disciplinary panel)?

 

The answer in relation to mitigating circumstances differs greatly depending on whether we are talking about an internal process, or Tribunal proceedings.

[be96erj]

going

through a disciplinary process and a "tribunal"

has been formed as part of this (namely a

disciplinary panel)?

_________________________________

 

Hi Becky, yes it is the latter.

[NikeTrainer]

Did you assault someone at work? or a member of the public outside of work?

 

At an employers discliplinary they will listen/or pretend to listen to mitigating circumstances.

In an employment tribunal they just look at if the employer followed a proper process and if a dismissal was fair/legal.they do not take into account mitigation.

[becky2585]

Hello again,

 

An employer is indeed supposed to take into account mitigating circumstances if they are making a decision which could result in disciplinary action. This does not mean, however, that they are not still entitled to dismiss you even taking them into account, and an Employment Tribunal (in its legal capacity) is unlikely to question an employer's viewpoint in this sense.

 

Your employer ought to be holding a disciplinary hearing with you, which gives you the opportunity to put forward your side of the story and explain your mitigating circumstances. You should also be given the right of appeal if you are found guilty.

 

Providing they have a reasonable belief in your guilt, go through a fair procedure, do as much investigation into the situation as possible and impose a sanction which was open to a reasonable employer to impose, a decision to dismiss you may therefore still be a fair one.

The burden of proof for an employer when undertaking the disciplinary process is "on the balance of probabilities", i.e. 51% or higher, whereas the criminal burden of proof is beyond reasonable doubt, which is much higher. This effectively means that you can be dismissed for an assault which was not treated as a criminal matter.

 

If you deny that an assault took place but the company has evidence that it did, this will not look good as the company will be entitled to find that you were dishonest and/or obstructive during the disciplinary process and are more likely to impose a harsher sanction because of this. If you did commit an assault (whether that be criminal or not) and you think your employer will look favourably on your mitigating circumstances, the best bet is to throw yourselves at their mercy, apologise, and point out how out of character it was and the reasons behind it. Unfortunately, however, if you did commit the assault and they have evidence of this, the chances of keeping your job are probably very slim.

 

I am not sure if this applies to you, but depending on the nature of the disciplinary hearing (i.e., if the outcome could deprive you of the right to practice your profession in future, such as if you were facing being struck off as a doctor/nurse, teacher or solicitor) then you are entitled to have a legal representative present. Otherwise, you are entitled to be accompanied by a work colleague or trade union representative.

[be96erj]

thanks for the reply Becky,

 

What are your thoughts with regards to my employers now allowing me to interact with the public even with this matter going on.

 

The incident in question happened at work.

[NikeTrainer]

Sorry to be the bearer of bad news but you will most likely be sacked, if they think you did it. Like the other poster said they only have to find on the balance of probabilities you did it. They will listen to what you have to say but its doesnt matter how stressed you were if you did it, its completley unacceptable.

Absolutley no employer I know would keep someone on after this even if they were severley provoked. Im shocked your not suspended.

You need to get some advice sharpish from a union.

Also if they do sack you with this on your record, your going to find it very difficult to get any work at all.

Edited January 13, 2012 by NikeTrainer

[RachelMD]

I think it would help, be96erj, if you were to give a full account of what exactly occured during the incident you're being disciplined for.

[rebel11]

Hi guys

 

Can we all respect each other, it's fine to disagree with each other, but remember we are all here to help and support each other.

[becky2585]

Thanks for the reply Becky,

 

What are your thoughts with regards to my employers now allowing me to interact with the public even with this matter going on.

 

The incident in question happened at work.

 

Well, honestly, I am relatively surprised that they haven't suspended you, given the nature of the allegations. However I presume it wasn't a member of the public or a venerable adult you were accused of assaulting, so really there isn't that much danger!!

[be96erj]

Hi Becky, unfortunately I am accused of assaulting a member of the public. That is why it is ridiculous that I am still being allowed to deal with other members of the public. How can I still be taken to an employment tribunal when my work are allowing me to do this?

 

it is all very complicated and I absolutely did not do it. I really don't want to elaborate too much as I am paranoid.

[becky2585]

It's an issue that you can bring up during the disciplinary process. If you didn't do it, how did the police become involved?

 

Unfortunately it boils down to your employers genuine beliefs. I hope therefore that you have enough evidence to sway them!

[papasmurf1cx]

It would help if you could stop using 'employment tribunal' when you mean internal discipline panel. On the site we use the term Employment Tribunal as the national 'court' for employment disputes.

 

Please can you detail the circumstances of the incident as many common assaults can be a two way affair and this could help you if presented in the right way.

[be96erj]

I was given a final written warning almost 2 years ago, however I recently got a complaint within the 2 years the warning was live. I have been told that I will need to go to a misconduct panel again.

 

However I have noticed in my electronic Hr record there is no mention of my final written warning (even that I had been issued one).

 

Would I be able to use this technicality to avoid going to another misconduct panel?

 

Thanks

[becky2585]

In short, no.

 

Both you and your employer knew the FWW was live so a technical hitch won't avoid that!

[Sidewinder]

Are you sure that the FWW wasn't issued to remain on your file for only a specific period of time? It would be unusual for any warning to remain on file for ever, so is it possible that it has been expunged?

[Emmzzi]

if you have committed another misconduct you need to go to another hearing... the FWW affects the penalty, not the need for the case to be heard