Is this really gross misconduct?

[bedlington83]

We have asked for copies of the minutes of the meetings that the investigator held with other staff members. We've been told that, because the interview notes haven't been approved by the interviewees we cannot yet have them but they will be provided when the interviewees have agreed their content. (What happens if any of the interviewees refuse to give their approval has not been made clear).

 

This doesn't seem right to me as it a) allows the evidence upon which the conclusions were drawn to be amended before we get to see it and b) the decision has been made based on the notes as they currently stand. Could this denying us sight of the notes prior to them being amended and or approved constitute procedural unfairness?

[bedlington83]

By the way - witness statements are taken in advance. There is no cross examination during this internal hearing. It isn't like a trial.

See my post 51: Witness statements have not been taken and I'd be interested in your views as to procedural unfairness. Also both the investigator and my wife's immediate line manager, the Chief Finance and Administration officer, are being asked to give evidence and my wife has been told she will be allowed to question them. She has also been asked to supply a list of witnesses that she intends to invite

[bedlington83]

Bump for my query at 51. Also, of the few documents that we have received from the panel one is a copy of the letter that the investigator sent to my wife prior to the investigation. Except that it isn't a copy. Its similar, but the "copy" she received from the panel is dated two days earlier than the one she actually received and the wording in the "copy" is slightly different. Where the original says things like "I believe that you are responsible" the copy is much less equivocal; "you are responsible" (my emphasis). I have a tactical question: Should we highlight the discrepancies to the panel now (and hopefully put doubt into the panel's mind's about the investigator's credibility) or wait until the hearing itself and question the investigator about them then?

[bedlington83]

We now have notes (see post 51 above) from three of the four meetings that the investigator had with other staff members and they have been amended by all three of the interviewees. I don't think the amendments add or detract from either side of the argument and they do genuinely appear to be clarifications (although obviously I'm not happy about this being allowed to happen). Of greater concern is that two of them have been redacted. In one, the first interview, a whole sentence has been redacted, in another approximately 23 - 25 characters have been redacted in the middle of a sentence. Does anyone have any views on this?

 

Secondly, it is obvious from the notes that the investigator interviewed the first person then essentially asked the remaining interviewees to confirm the account of the first person. To me this seems that the investigator is seeking to prove the account of the first interviewee rather than establish facts. I think this demonstrates predetermination but am sufficiently self aware to realise that I'm not exactly unbiased myself, so I'd appreciate the views of independent people. Does this demonstrate predetermination?

[bedlington83]

Bump

[Emmzzi]

It is entirely normal for notes to be amended by witnesses - that is why they are sent for checking

 

Redacting odd things for confidentiality is normal but I'd ask why they have been redacted

 

I'd keep any discrepanices for the hearing

 

Things that are "obvious" to you may not be "obvious" at all to people external to the situation so I will not offer a view on that

 

You keep saying "we". Are you of the opinion that you will be there personally? I think it is time for you to stop posting and for Wife to begin posting so she is prepared.

[bedlington83]

It is entirely normal for notes to be amended by witnesses - that is why they are sent for checking

I agree, and in an ideal world there should have been statements taken and agreed rather than the investigator relying on his notes. I also agree that the interviewees should be given the opportunity to correct inaccuracies in the investigator's notes (even though this opportunity was denied to my wife) but AFTER they've been used to produce the report? The order of events is; interviews held and notes taken, report produced, notes then amended by the interviewees. Surely they should have been amended and agreed BEFORE the report was produced? Interestingly we have yet to receive the notes from a fourth interviewee and we suspect that its because they are refusing to agree the notes because they no longer want to be involved. Does this mean we shouldn't be allowed to see them at all? (I ask the question rhetorically to highlight the difficulties with the way this has been handled.)

 

Redacting odd things for confidentiality is normal but I'd ask why they have been redacted

Agreed but what confidentiality is being protected here: "[interviewees name] could see no reason why an investigation [23 chars of redacted text] should not proceed in respect of that”. We will also be asking who redacted them and when because we don't know whether it was before or after they were signed by the interviewees.

 

Things that are "obvious" to you may not be "obvious" at all to people external to the situation so I will not offer a view on that

I agree and perhaps I should have quoted the notes when I made the comment about it being obvious: The notes of the second and third interviews start with "[Name] agreed with [first interviewees name]'s account."

 

You keep saying "we". Are you of the opinion that you will be there personally? I think it is time for you to stop posting and for Wife to begin posting so she is prepared.

Lol. Of course I won't be there but I am one half of a marriage and what happens to my wife obviously affects me as well. I post on here to help me stay sane and to canvass the views of others with more experience of misconduct processes as much as to help my wife, who is primarily getting assistance elsewhere.

[Emmzzi]

Well, I would take assistance from one place - the place that has the full details of everything. We obviously only get edited highlights here!

 

I've no idea what this "report" you refer to is but as it isn't the outcome report, assume it can be edited.

[bedlington83]

I really don't understand why you think you're only getting edited highlights - see posts 51, 52, 53 & 54 above. The report is the outcome of the investigator's investigations. It was informed using the notes of the interviews that have now been amended

[Emmzzi]

This feels like you are arguing with me when actually you are angry with the employer. Honestly? I'm too busy with paid work for that.

 

Hopefully the person advising your wife has all of the detail, all of the notes, the employment contract, etc etc, and actually has her in front of them to ask questions to. I don't. That is what I mean by edited highlights.

[bedlington83]

I'm sorry you feel like that. I'm not arguing and value your input but your response suggested that perhaps I hadn't made myself clear. I wasn't after advice in particular but for experienced people's views of a process that I think is at best unorthodox. It seems that I'm wrong and this sort of thing is normal

[Emmzzi]

per your post 38 - if anything this unorthodox approach is skewed in your favour

[bedlington83]

The disciplinary was yesterday and the first thing that was supposed to happen was the investigator talking through his report to the panel. This was something that we were well prepared for and felt confident that we could destroy his credibility when asking questions. Unfortunately, it didn't happen because he didn't turn up and, when he was contacted, he refused to turn up to defend his report at any time. The meeting was adjourned while the panel decided what to do. The decision was to dismiss the investigators report and tell my wife that she would not be losing her job. The hearing continued because the panel were concerned that the original problem - some of the invoices going out of time - still existed so something was clearly going on and they spent an hour or so discussing things with my wife. After that they interviewed my wife's boss and someone from the secretarial department. After much discussion they recalled my wife and told her that she was to be given a written warning. She was given no opportunity to interview any of the other witnesses that she asked to be called (and which the panel had previously indicated would be called).

 

According to the written decision the panel decided that "so far as the actual charges as set out in the letter of [date of the invite to the disciplinary hearing] are concerned the panel found that those were not proved and that you were not guilty of gross misconduct." It then goes on to say that, however, my wife's performance was not what was expected of her and, because some invoices that date back to 2010 (!) will not be paid, that a written warning was an appropriate sanction. Can they lawfully do this; find the allegations re conduct not proven and clear my wife then substitute an entirely different charge re performance and find her guilty? A lot of people spent a lot of time providing evidence and statements to help defend a gross misconduct charge and it doesn't seem particularly fair that the panel can effectively say "You're right, you're conduct is fine so instead we will sanction you on your performance, which hitherto no-one has mentioned as being a problem"

[Emmzzi]

you said a lawyer was going with her. what's their view?

[bedlington83]

Although she had permission to bring the solicitor with her, the solicitor didn't think it appropriate for her (the solicitor) to go to the disciplinary so she took a colleague instead. We have yet to go back to the solicitor with the outcome.

[assisted blonde]

Well she has still got her job thats one good thing and I assume that was the main problem and the outcome you wanted? To some extent although the way things were handled at the Hearing was not really satisfactory the result is ok, as for the written warning as to performance just make sure that if she requires more training/help etc then the requests are documented so that should there be another question as to her performance she can show she has done everything right.

[altobelli]

Well she has still got her job thats one good thing and I assume that was the main problem and the outcome you wanted? To some extent although the way things were handled at the Hearing was not really satisfactory the result is ok, as for the written warning as to performance just make sure that if she requires more training/help etc then the requests are documented so that should there be another question as to her performance she can show she has done everything right.

 

I think this is a really good point, its important to think about how things will be going forward. Hopefully ok, but keep yourself covered just in case.

[bedlington83]

Well she has still got her job thats one good thing and I assume that was the main problem and the outcome you wanted? To some extent although the way things were handled at the Hearing was not really satisfactory the result is ok, as for the written warning as to performance just make sure that if she requires more training/help etc then the requests are documented so that should there be another question as to her performance she can show she has done everything right.

I agree that the outcome wasn't as bad as we'd feared but there are a number of things that still concern me:

 

• She was acquited of the charges brought against her yet was still sanctioned. This is like being charged with murder then, at the end of the trial, the jury find you not guilty but the judge sends you to prison for 2 years for robbery.
  
• There is nothing wrong with her performance, which the panel tacitly admits by making no comment about what needs to improve or by when.
  
• The only place that there are any allegations of anything are in the investigators report and she's been exonerated of those so what, exactly, does she have a warning for?
  
• She was given no opportunity to defend herself against a charge of unsatisfactory performance and the defence would have included a reference to the fact that none of her managers have had cause to complain about it in the past. In fact, a supervisor who has now left wrote a long and detailed email explaining where the systemic problems were and giving my wife fulsome praise
  

My wife needs neither training nor help. All she needs is a manager that will actually manage and take responsibility rather than blaming my wife for the manger's failings.

 

I agree that she should be able to prove that she does things correctly, and, if we'd known that there was a concern as to her performance we would have tried to do exactly that. However, its difficult to prove that she did everything correctly when there are no documented work methods.

 

In the new year she will have a performance appraisal by the manager that refuses to manage. How can we expect that to be anything but negative regardless of my wife's actual performance?

[bedlington83]

I think this is a really good point, its important to think about how things will be going forward. Hopefully ok, but keep yourself covered just in case.

It's difficult to be positive about things going forward though. This whole disciplinary was, at best, misconceived and quite possibly an attempt to effect my wife's removal. Either way, it is clear that she has no support from the new management who seemingly want her out. We also still have no idea where this came from or why my wife was targeted so its difficult to see how she can protect herself from something like this happening again in the future

[steampowered]

An accountancy firm should have a clear appeals process. I think it is worth appealing the written warning with a clear, short explanation of your wife's side of the story. Clearly explain that the problems are due to an intense lack of capacity in the accounts department and that she has done her best and performed the job competently.

 

It sounds like she is being used as a bit of a scapegoat for the people who are responsible for the mess accounts is in. It sounds like senior people are now investigating the situation and should be bringing some changes in account, so hopefully they will recognise that something is badly wrong and that it is not your wife's fault.

[bedlington83]

She's definitely being scapegoated and the letter giving notice of intention to appeal has been sent. The appeal grounds are;

 

• She wasn't allowed to present a full defence
  
• The panel's finding was that her performance wasn't good enough. That being the case they should have implemented the performance process rather than going straight to disciplinary sanction
  
• Unfairness and other irregularities