Shambolic Disciplinary hearing - advice needed

[Daveeddie1978]

Hi All,

 

I am looking for advice for a family member of mine who out of the blue has been handed a disciplinary hearing letter today to attend the hearing on Monday at 10am.

 

Ok so let me tell you all the story so far -

 

This lad has just turned 19 years old and has been employed by a financial advice business as an administrator since September 2014. He was taken on with the promise of further training to further his career in the finance world - as yet no training whatsoever.

 

This Monday just gone out of the blue they had a new lady start with the business - it is a small business with around 6 employees in total with approx 3 in the office at a time including him but typically none of the management are in the office as they are out visiting clients. There have been numerous times when he has been left on his own in the office with nobody doing any lone worker checks throughout the day to see if he is ok and not hit his head and in need of urgent medical attention.

 

So the new lady started Monday and has been for the whole of this week telling him how she wants to learn all of his work he does and he had no idea so has been happily showing her what it is he does - so basically training her in his role unbeknown to him.

 

Then today as soon as he walked in his boss took him outside and said to him that he had a letter for him and it was very very very serious - bit of scaremongering thrown in to the mix here - obviously thinking because he is young he might get scared and just hand his notice in.

 

Anyway he has opened the letter in front of his boss and had a bit of a chuckle and said you cannot be serious etc and told him to his face the answers to each charge on the letter. He remained at work for the rest of the day.

 

So the content of the letter goes like this -

 

I am writing to inform you that you are required to attend a disciplinary hearing on Monday 27th of July (Less than 48 hours notice given) at 10am at blah blah (names not shown for obvious reasons)

 

The purpose of the hearing is to consider whether disciplinary action should be taken against you in respect of the alleged misconduct or gross misconduct.

 

The allegation is that -

 

You failed to turn up for work until 11.30am on Wednesday 14th of July and you did not notify me or anyone else of your absence

 

You were asleep at your desk when I came in to the office on Thursday 15th of July

 

I understand that following an alleged assault on you last week you took money from the assailant in return for withdrawing a statement to the police. You were then seen counting rolls of cash at your desk during working hours. (He was assaulted outside of the work place - at the weekend and nothing to do with work and the lad that did it offered a good will gesture of £200 if he didn't go to the police as he was on bail at the time of the assault. No proof of cash changing hands as he has done nothing and left it to the police - the money he had was his birthday money which was the day before this alleged incident which he was counting during his dinner break at his desk)

 

You have on numerous occasions fabricated information which has led to various problems including invoices being unpaid

 

I have previously spoken to you about comments you made to blah blah (former co - worker left the business 3 months ago) that were deemed inappropriate

 

You have been seen on numerous occasions visiting non business websites during working hours. In particular you were warned about this on 29th of April and 05th of May

 

If there are any documents you wish to be considered at the hearing please provide copies as soon as possible. If you do not have those documents please provide details so that they can be obtained.

 

The hearing will follow the disciplinary procedure which is attached. If you are found guilty of misconduct we may decide to issue a written warning or a final warning or dismiss you with notice, or pay in lieu, however if you are found guilty of gross misconduct you may be dismissed without notice or pay in lieu of notice.

 

Now for me I would say they are cutting costs and just going straight for gross misconduct.

 

The case they have is pretty pathetic and has no real substance. This appears to be an underhand tactic to get rid of him via gross misconduct on Monday.

 

I have his responses here to the allegations and will await a response to the initial post before posting his response.

 

It is key that you all know that not once have they advised they are investigating him nor have they given a verbal written or any form of warning to him. they have had an informal chat nor addressed any of these issues they have been investigating with his knowledge.

 

Thanks for your input

Edited July 24, 2015 by Daveeddie1978

[obiter dictum]

It seems to me this is a fact finding rather than a full disciplinary

 

I cannot see how they can dismiss without a fact finding before a full disciplinary but the problem is:

 

You have less that 2 years service so expect to be walking mate with no come back

[Sidewinder]

There is no doubt here that the employer wants your friend out - either justifiably or whether the charges have been fabricated.

 

One has to ask whether there is ANY substance to ANY of the allegations mentioned?

 

Irrespective of whether any warning was given at the time, Did he turn up late without notice? Did he fall asleep at the desk? Was there anything mentioned about internet use? Did he make 'inappropriate' comments? What about the allegation of assault?

 

Was the 'new' colleague perhaps a plant, put there to report back?

 

You say that there is no REAL substance but how substantial are we talking, as any one of these criteria could justifiably result in dismissal - don't like you, face doesn't fit, hair too long, wrong aftershave, can all be masked by a trumped up or exaggerated charge.

 

Now even IF there is no substance whatsoever, your friend is seriously disadvantaged by not having completed two years service. That is not to say that your friend shouldn't be treated unfairly, or with due process, but that any possible claim for Unfair Dismissal on grounds of procedural or material unfairness cannot be brought in a Tribunal until two years have been served - unless it can clearly be evidenced that there was an element of discrimination involved. There are very limited legal options available, and even there any awards would be limited.

[Emmzzi]

Your post reads like that of an over prtective parent.

 

First step, could you have a gentle chat about if there is any truth on any of the charges? I'd bet a tenner on the internet one being true, we almost ALL do it, and maybe being sleepy having clubbed it a bit hard the night before.

 

Do that and come back with a balanced view of things for us?

[Emmzzi]

.

 

I have his responses here to the allegations and will await a response to the initial post before posting his response.

 

 

 

Why not just tell us so we can give proper advice?

[Daveeddie1978]

Hi,

 

Thanks for the responses so far. Below are his responses to the allegations made by the employer -

 

You failed to turn up for work until 11.30am on Wednesday 14th of July and you did not notify me or anyone else of your absence -

Response -

I tried to call you on your mobile phone before 8am but it was off with no voicemail option. When I attended the doctors at 8am to have my stitches removed from my nose due to the assault that I had happen to me I was unable to call you again due to my phone battery dying. I did send you an email as soon as I was in the office apologising and letting you know when I would be working the hours back - You did not respond to my email but I still worked the time back.

 

You were asleep at your desk when I came in to the office on Thursday 15th of July -

 

Response -

I wasn't asleep I was leaning on my left forearm as I use my right hand to write. As soon as you entered the office I greeted you and instantly asked you if you would like a drink to which you declined. You did not challenge me at all to ask if I were asleep or tell me you thought I were asleep as I was not asleep.

 

I understand that following an alleged assault on you last week you took money from the assailant in return for withdrawing a statement to the police. You were then seen counting rolls of cash at your desk during working hours. (He was assaulted outside of the work place - at the weekend and nothing to do with work and the lad that did it offered a good will gesture of £200 if he didn't go to the police as he was on bail at the time of the assault. No proof of cash changing hands as he has done nothing and left it to the police - the money he had was his birthday money which was the day before this alleged incident which he was counting during his dinner break at his desk)

 

Response -

Yes I was assaulted as you know. I previously spoke to you in general conversation about how the lad that did it had offered me money not to go to the police as he was already in trouble and on bail. I did not tell you I had accepted nor intended to accept any money from this person. I reported the matter to the police and they are dealing with it. I have not had any money from this person. The money I was counting was my birthday money which was £200 which I received from my family members on my birthday on the 16th of July. I was at my desk and it was 12.05pm which was my lunch time. I fail to see how this has anything to do with the company especially as the assault took place at the weekend outside of my working hours and I was not the aggressor.

 

You have on numerous occasions fabricated information which has led to various problems including invoices being unpaid

 

Response -

Your allegation is very vague and shows little substance. Please provide more information as to what it is that I have done to fabricate information. I have printed copies of emails here to prove I have done what has been asked and what I have been trained to do with the invoices. (We are currently awaiting a response as to what the details are of the allegation)

 

I have previously spoken to you about comments you made to blah blah (former co - worker left the business 3 months ago) that were deemed inappropriate

 

Response -

This was banter between myself and my colleague who I got on with and the comments were returned by the colleague to myself. You spoke to us both at the time informally as per the companies disciplinary procedure this matter was dealt with and the comments you made us aware of stopped from this point on. I would request you remove this allegation from the hearing as it is no longer relevant having already been dealt with.

 

You have been seen on numerous occasions visiting non business websites during working hours. In particular you were warned about this on 29th of April and 05th of May

 

Response -

The only time you have spoken to me about this is when you handed me the disciplinary letter. You told me I had been seen using a music website to listen to music. I had been using music websites while doing my work yes. I have been doing this since my colleague blah blah informed me that he did this as it helped him focus and get his work completed and he then showed me how best to do this. He still continues to do this and has no action taken against him. When blah blah (another manager) came in to the office one day she asked what is that and responded with an honest answer of what it was which was a music site - she did not say anything else and did not challenge this nor ask it to stop at all at this point.

 

He has emailed the manager dealing with this asking for the training policy, code of conduct and also the lone worker policy (this has been requested as he has been left alone in the office for weeks at a time with no call from anybody to ask if he is ok and make sure he is ok to open up the building and also lock up at night.

 

So far we have had no response other than to tell him not to go to work at 9am and just to turn up at 10am for the hearing.

 

He has asked if he will get paid still from 9am and again no response.

 

He has also advised that as he hasn't had full details of the allegations with dates and times and more detail around the fabrication of information allegation that he would like to request the hearing be postponed to allow him time to review what they have (when they send it) and produce a response - again no response as yet.

 

He has been told by another family member to go to the doctors and get signed off with stress Monday and try to delay the hearing...my thoughts are that this is bad advice!

 

Thanks

[Daveeddie1978]

In preparation for Monday does anybody know if they legally should have held an investigative interview first with him? It says in their disciplinary procedure they do do this but as it is they haven't and have gone gung ho straight to the disciplinary hearing.

 

He has also advised that in May the colleague that told him to listen to music on his pc while working was given a bottle of expensive whiskey by the boss and a card but for his birthday he got a mumbled happy birthday and nothing else. Clutching at straws but could this be construed as victimisation potentially?

 

Thanks

[Sidewinder]

First of all, the advice to sign off with stress whilst this may be a genuine reaction, will only delay the hearing, NOT remove it. If there is a genuine illness, then by all means your friend should seek treatment, but if not, then delaying the meeting will only prolong the uncertainty. A request for a delay might be appropriate if there is a need to gather further evidence however.

 

As previously stated, your friend is severely disadvantaged by the short length of service. An employer could quite literally dismiss for the flimsiest reasons and have very little chance of repercussions, so it is entirely possible that even having plausible answers for each of the charges, the outcome may well be the same.

 

It is still worth defending each of the allegations, but from what has been said so far the employer seems adamant in letting your friend go.

 

IMO the best outcome from this would be to negotiate a parting of the ways with an agreed or neutral reference and with payment in lieu of notice. Others may well have a different opinion

[Sidewinder]

In preparation for Monday does anybody know if they legally should have held an investigative interview first with him? It says in their disciplinary procedure they do do this but as it is they haven't and have gone gung ho straight to the disciplinary hearing.

 

He has also advised that in May the colleague that told him to listen to music on his pc while working was given a bottle of expensive whiskey by the boss and a card but for his birthday he got a mumbled happy birthday and nothing else. Clutching at straws but could this be construed as victimisation potentially?

 

Thanks

 

Legally? No. Had your friend sufficient service to bring an Unfair Dismissal case, and if the ET found in his favour, then any failure to follow correct process could lead to an increase in any award made, but on it's own, a failure does not constitute unfair dismissal.

 

However

 

Where the employer has a contractual disciplinary process, a failure to abide by their own process constitutes a breach of contract and potentially wrongful dismissal. This would be actionable in a civil court as a BoC claim and your friend could claim damages resulting from that breach. There can be no punitive award made against the employer - merely any losses incurred as a consequence of the breach.

 

It hasn't been mentioned specifically, but has your friend been given the right to be accompanied at the disciplinary hearing? Has he also been warned that dismissal might be a possible outcome?

[Daveeddie1978]

Hi,

 

Thanks for the responses.

 

So far he has still had nothing back from the manager with regard to the request for more clarification on what the fabrication of information allegation is so he can prepare his response.

 

He has made reasonable requests for information from them but they have failed to send this and it is highly likely that they will not send this.

 

I will be going in with him to support him - they have agreed to this - should we before things start just say - it is pretty evident your intentions are to remove him from your company and we are happy to reach a mutual agreement or you could go through this process and waste numerous man hours and potentially have to visit court.

 

Or should we go in and let them go through this process and then let him give his responses then make the offer to settle it that day mutually.

 

Either way he doesn't want to work for them going forward now as he trusted them and they acted like friends - naive on his part really given they are his bosses - and the working relationship is now gone.

 

It says in their disciplinary policy and procedure that they have a capability process - some of these allegations I feel would fall in to the capability category?

 

It has stated in the letter he has the right to accompanied yes. When he asked if a family member could attend with him they advised they would need to check with their legal department and then came back with - yes don't come in at 9am come in at 10am.

 

I have told him that going off with stress is not the way forward and he has agreed that he won't be doing this.

 

Thanks for the help so far it is appreciated.

[Daveeddie1978]

Just checking over the contract of employment - he has not signed the contract nor has his employer and the commencement date is September 2017.

[SabreSheep]

Is his employer David Tennant?, Matt Smith or Peter Capaldi?

[Daveeddie1978]

Haha!!! That is the most I have laughed for ages

[Daveeddie1978]

Ok so now we know the contract is dated for 2017 and not signed by both parties is it advisable to go in there and tell them the relationship is broken for both parties and to save time and money it is best for both parties to agree a mutually acceptable parting of ways with a waiver signed that he will not take any further action with regard to the comments in writing and signed by the manager which could be construed as defamation of character?

 

Or should we take a different approach and say - the contract is not valid therefore there are no breaches of contract as the contract hasn't been agreed.

 

Thanks

[Emmzzi]

there's no defamation - they are stating allegations not presenting facts. I can't see anything he could take them to court for at this stage, so you are playing with a weak hand.

 

there's an implied contract as the man kept working and taking pay so that's a non starter too

[Daveeddie1978]

Ok so the best thing to do is await their decision and if they claim that these are proven facts we are then looking at a different case as it will then be no longer allegation but what they claim to be fact.

 

Thanks

[Emmzzi]

You might think that's the best thing to do. However to dismiss they only need a reasonable belief; and also for a defamation claim it'd need to be broadcast far more widely. It's not like they're going to publish it in the local paper now is it?

 

Basically, you're trying to wave about a gun with no bullets in the chamber. It just won't work.

 

Have you considered simply asking for a neutral reference without making demands or threats?

[Daveeddie1978]

The aim is to get a mutual agreement and neutral reference. They haven't given him a proper opportunity to defend himself as they haven't responded to his requests for policies and also not given clarity as to what the fabrication allegation is.

 

Their policy states that he will be given the opportunity to respond to the allegations and that if he requires further information to ask within a reasonable timescale.

 

Surely their failure to respond is not following the policy they have in place?

 

The appeal is going to be fun.

 

If they do not take reasonable steps during investigation like making contact with the police to ask if he has made a statement then that would mean they have not performed a proper investigation?

 

Thanks

[Emmzzi]

Here's the problem; less than 2 years service. They can literally just say "Sorry, it's not working out, here's your notice pay and holiday pay, goodbye."

 

So while you get yourself into minute details of defamation and policy and appeals to try and find an angle - it's all for nought.

 

Just ask for a decent reference. They are going to know anything else is bluster.

 

No, it's not fair; but that is how the law currently lies.

 

They also don;t have to allow you, a non employee non union rep, to accompany - if you want to stick to strict policy it would probably have to go both ways. At least his way the fella has a friendly face during an unpleasant process.

 

I would at this stage recognise you have no cards to play, zero, nada - and take the meeting accordingly.

[Sidewinder]

Sorry to say but you seem to be looking far too far into this

 

Whether they conduct a 'reasonable' investigation is a moot point. This is potentially a wrongful dismissal for the reasons previously stated (BoC). A reasonable investigation is required in order for a 'fair' dismissal where dismissal is within the range of reasonable responses available to the employer - and we have already advised that unfair dismissal is a non-starter due to length of service.

 

Now you can either tip them off as to the potentially wrongful dismissal and failure to follow policy - in which case they may restart the process, conduct an investigation and follow through with a disciplinary. Any dismissal which might result would then almost certainly be lawful. Or you can wait to see what happens, challenge the lack of response to reasonable requests for documents and information at the DH itself and hope to have the meeting adjourned whilst they provide what has been asked for. This MIGHT leave the door open for a potential claim.

 

They are not obliged to go to the police - nor should the police provide details - this is not a work-related incident.

[Daveeddie1978]

Thank you both for your replies.

 

It is pretty much we just go in tomorrow and he gives his responses. I will then let them know they may be looking at wrongful dismissal so if they want it over with fast they can agree a mutual settlement and he will sign a waiver.

 

They can either be full of rage and not care or they can accept it and get it over with and avoid the appeal and the grievance which we will put in.

 

I will let you know how it goes tomorrow.

 

Thanks

[Sidewinder]

Or you can warn them that they are walking into a potential legal issue and they will halt proceedings to take advice, correct their errors, dismiss lawfully and refuse a neutral reference.

 

A combative stance is not always wise that early, neither is showing your hand from the outset....

[Emmzzi]

personally I reckon as you're being allowed to go with him - and did you say he had been advised dismissal was an option? - breach of contract is very tenuous.

 

If he has found this stressful - wait til you see court.... and there's no guarantee of justice.

 

Defend as best you can, ask about a reference, move on.... I'd say this is not the battle to pick as it sounds that he is best off out of there. At his age he has plenty more options ahead. Pragmatism is also a good lesson to learn.

[Daveeddie1978]

Or you can warn them that they are walking into a potential legal issue and they will halt proceedings to take advice, correct their errors, dismiss lawfully and refuse a neutral reference.

 

A combative stance is not always wise that early, neither is showing your hand from the outset....

 

Very true. We will get tomorrow over and done with and then take it from there. The more errors on their part the better from our point of view. Thanks again for helping calm the rage and provide rationale

[Daveeddie1978]

personally I reckon as you're being allowed to go with him - and did you say he had been advised dismissal was an option? - breach of contract is very tenuous.

 

If he has found this stressful - wait til you see court.... and there's no guarantee of justice.

 

Defend as best you can, ask about a reference, move on.... I'd say this is not the battle to pick as it sounds that he is best off out of there. At his age he has plenty more options ahead. Pragmatism is also a good lesson to learn.

 

Agreed. He is better off away from these people that have an agenda to remove him from the company. We found an advert for his job today that they have posted as an apprenticeship back in June for less than half his wage. Perhaps the reason they are doing this is because they are cutting costs. The biggest smack in the face is that the person doing this to him was a family friend before all this and had been for 15 years. Leaves a sour taste in the mouth how he is going about it.